In execution petition reliefs more than one also can be prayed for

Andhra High Court A. Ramesh vs Chintala Prabha And Anr. on 14 August, 2001 Equivalent citations: 2001 (6) ALD 240, 2001 (6) ALT 529 Bench: P Narayana

ORDER

1. The revision petitioner who is the Judgment Debtor in E.P.No. 12 of 1997 in O.S.No. 431 of 1993 on the file of the Principal District Munsiff at Karimnagar, filed the present revision, aggrieved by the order of issuing warrant of delivery of possession against him on 22-10-1998. For the purpose of deciding the present, revision, the other factual details may not be necessary. 2. Sri Ramesh Sagar, learned Counsel for revision petitioner/ judgment debtor had raised the following contentions. Learned counsel submitted that in E.P.No. 12 of 1997, two reliefs have been prayed for, one is for recovery of rents and another is for delivery of property. The learned counsel had drawn my attention to Rule 55 and Rule 218 of A. P. Civil Rules of Practice, and also had drawn my attention to Order 21 Rule 11 of the C.P.C. and contended that the relief of recovery of money cannot be prayed for and in this view of the matter, the very E.P. containing two prayers is not maintainable and hence the order of delivery made in pursuance of such Execution Petition is unsustainable in law. 3. Sri P.V.Narayana Rao, learned counsel representing respondent/decree holder had submitted that Rule 55 and Rule 218 of the A.P. Civil Rules of Practice, 1990, are applicable only to interlocutory proceedings and also to execution applications which would be filed in the main E.P. proceedings. Learned counsel had also drawn my attention to Rule 209 of the A.P. Civil Rules of Practice, 1990 (in short hereinafter called as the Rules for the sake of convenience) and contended that in view of the specific provisions, it cannot be said that Rule 55 and Rule 218 of the Rules are applicable. The learned counsel had drawn my attention to Order 21 Rule 11 (J) of C. P. C. and contended that the reliefs prayed for in the E.P. are in accordance with law and that there is no illegality and placed reliance on VIRYALA PERRAJU v. PILLI ACHANNA, and judgment of Division Bench in D.NARAYANASWAMY NAIDU v. T.T. DEVASTHANAMS, TIRUPATI, 1994 (3) ALT 29 and contended that in the light of the ratio in the above decisions, it cannot be said that two prayers cannot be prayed for in Execution Petition as such. 4. After hearing both the parties at length, it may be appropriate to deal with the relevant provisions on this aspect before proceeding further, 5. Rule 55 of the Rules, falls under the interlocutory proceedings, which reads as follows: "Separate Application for each distinct prayer:- There shall be separate application in respect of each distinct relief prayed for. When several reliefs are combined in one application, the court may direct the applicant to confine the application only to one of such reliefs unless the reliefs are consequential and to file a separate application in respect of each of the others." A. Ramesh vs Chintala Prabha And Anr. on 14 August, 2001 Indian Kanoon - http://indiankanoon.org/doc/1698525/ 1 6. It is relevant to look into Rule 53 of the Rules here itself, which deals with the form of interlocutory applications: "Form of Interlocutory Application :--Interlocutory applications shall be headed with the cause title of the plaint, original petition, or appeal, as in Form No. 13." 7. It is no doubt true that Rule 218 of the Rules dealing with application of rules specifies that Rules 53 to 59 and 213 supra shall apply to all applications by a party to the suit or matter made in or with respect to pending execution petition." 8. Rule 213 of the Rules reads as follows:-- Determination of question arising in execution of Decree:--If any question arises for the determination of the Court executing a decree the same shall be heard and determined upon the hearing of the petition or an application made therein, and, if evidence is taken orally, the court shall record the evidence of the witness, and mark all exhibits admitted in evidence, in accordance with Order XVIII, Rules 4 and 9 to the Code. The Court shall, in any case records its judgment and draw up its order in the same manner as upon the hearing of a suit. 9. Rule 209 of the Rules deals with application for execution, which reads as follows: ' 1. Except when made under Order XXI Rule 11 (1) of the Code, an application for execution of a decree shall be by petition and, in addition to the particulars set forth in Order XXI, Rule 11(2) of the Code, shall be headed with the cause title of the suit and separately numbered in each suit. 2. The Petition shall, if it relates to any property of the judgment debtor, pray for the realisation thereof, in the manner appropriate to the nature of the property, as in Form No-53 and shall also set out the whole of the relief which the Applicant requires at the time of presenting the same. The Court shall not grant any relief not claimed by the execution petition." 10. Now coming to the provisions of the Code of Civil Procedure, it is relevant to note Order 21 Rule 11 of C.P.C. Order 21 Rule 11(1) of C. P. C. deals with oral application and Order 21 Rule 11 (2) of C.P.C. deals with written application. The relevant portion is Order 21 Rule 11 (2) (J) which deals with the modes in which the assistance of the Court is required and the said provision reads as under: "(J) the mode in which the assistance of the Court is required, Whether:-- (i) the delivery of any property specifically decreed; (ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property; (iii) by the arrest and detention in prison of any person; A. Ramesh vs Chintala Prabha And Anr. on 14 August, 2001 Indian Kanoon - http://indiankanoon.org/doc/1698525/ 2 (iv) by the appointment of a receiver; (v) otherwise, as the nature of the relief granted may require. 11. In the light of these provisions, now the question that has to be decided is whether there is any illegality in the order impugned in the present revision. 12. It is no doubt true that in E.P.12 of 1997 in O.S.No. 431 of 1991 on the file of Principal District Munsiff, Karimnagar, two reliefs have been sought for. It is pertinent to note that the relief granted is only issuance of delivery warrants, that too on the ground that the Appeal itself was dismissed. Under Order 21 Rule 11(2) (J), it is pertinent to note that apart from the relief of delivery of any property specifically decreed, the relief by the attachment or by the attachment and sale or sale without attachment of any property and also by the arrest and detention in prison of any person have been specified. Here itself, it is made clear that the Code of Civil Procedure is the parent legislation and the A.P. Civil Rules of Practice, 1990, at any stretch of imagination cannot over-ride the aforesaid rules. 13. Be that as it may, the main Execution Petition, in my opinion can contain more than one relief for the reason that E.P. could be filed for execution of a decree. A decree will be drafted on the strength of a judgment, the judgment and decree may grant several reliefs to a party and while putting the reliefs granted by virtue of a decree into execution, 1 do not think that any such restriction can be placed in filing the execution petition. In the light of the above provisions read with Order 21 Rule 11(2)(J) of CPC, I am of the opinion that in execution petition reliefs more than one also can be prayed for since execution petition will be filed only for the purpose of execution of the decree and if the decree grants several reliefs, in the execution petition, the decree holder need not be driven to file separate E. Ps for each relief and for the purpose of convenience decree holder is at liberty to execute the whole decree claiming all the reliefs in one execution petition or otherwise, at least at his own choice and convenience and hence such restriction as contended by Sri Ramesh Sagar cannot be imposed, even in the light of the provisions referred to supra. 14. However, the view which I am expressing is also supported by the decisions of this Court (cited 1 and 2 supra) wherein it was held that the decree holder has a right to proceed simultaneously against two judgment debtors and also ask for more than one relief. 15. Apart from this, while exercising the jurisdiction under Section 115 of C.P.C., I am satisfied that since it was represented that the Appeal also was dismissed, the Court below was justified in issuing delivery warrant and if the impugned order is allowed to stand, it will not occasion in any failure of justice. Unless this additional ingredient also is satisfied, I am not inclined to interfere with the order of the Court below. 16. For the foregoing reasons, I am of the considered opinion that the present revision petition is devoid of merits and it is liable to be dismissed. Accordingly, the revision petition is dismissed. No costs. A. Ramesh vs Chintala Prabha And Anr. on 14 August, 2001 Indian Kanoon - http://indiankanoon.org/doc/1698525/ 3