Sri M Srihari

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IN THE COURT OF THE SENIOR CIVIL JUDGE :: VIZIANAGARAM

Present:- Sri K.Rambabu,

Senior Civil Judge,

Vizianagaram

Monday, this the 27th day of November, 2017

E.P.198/2012 in O.S.178/2004

Between:-

1. Akshinthala Satya Prasad (died)

2. Akshinthala Guru Prasad Guptha s/o. Late Satya Prasad, aged about 53 years, Trader, residing at Poolbagh road, Vizianagaram.

(2nd petitioner is added as per order in E.A. /2017

dated: 27.11.2017)

..PETITIONERS/D.Hrs

A n d :-

Kutcherlapati Prasadarao @ Prasada Raju s/o. Late Narasimha Murthy, aged about 61 years, retired employee, DCCB residing at Vijji Stadium Road, Vizianagaram

.. RESPONDENT/J.Dr

This petition coming on 30.10.2017 before me in the presence of

Sri K.V.N.Thammannasetty, advocate for the petitioner and of Sri K.Niranjan, advocate for the respondent, after having stood over for consideration till this day, this court passed the following:-

O R D E R

1.This application is filed under Or.21 Rule 11 CPC by the deceased 1st petitioner/D.Hr to deliver the vacant possession of the plaint schedule property to the 2nd decree holder by name Akshinthala Guru Prasad Gupta who is the legal heir of the original decree holder.

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2.Basing on the decree passed in O.S.No.178/2004 dated:

6.1.2009 and on registration of the E.P, this court issued delivery warrant on 21.11.2012. The schedule property is delivered on 3.5.2016. On 22.9.2016 the 1st D.Hr is reported dead. Already his legal heir who is the youngest son (2nd D.Hr) has come on record. Therefore, this is only a mere formality, for recording delivery report and closing the proceedings in the main

E.P.198/2012. The delivery report dated 3.5.2016 submitted by the Field

Assistant of the Hon’ble District Court, Vizianagaram, is not questioned as on date of hearing of this petition. In these circumstances, the youngest son of the deceased 1st D.Hr, has already come on record as per order in E.A. / 2017, the only formality is to record the same and close the proceedings.

3.The learned counsel for the D.Hr also relied on the following decisions:- (I) 2017 (4) ALT 171 SC in the case of P.JAGADAMBA AND

OTHERS vs. N.NAIR AND OTHERS. It is held that “it is unnecessary to go into question of genuineness of a will under Sec.63 and 68 of Evidence Act”.

(ii)AIR 2017 NOC 123 PUNJAB & HARYANA HIGH COURT, in the case of G.SINGH AND OTHERS VS. K.SINGH. It is held that when no plea is taken by the other side, the party, who relies on the will is not required to prove the execution of the will.

The proposed party the petitioner No.2, relied on a will

dated 22.1.1991, executed by his parents viz., 1st petitioner and his wife, and

at the time of recording of delivery, no serious objection is taken by the other side. The question of proving of will relied on by the petitioner, does not arise. Moreover, 2nd petitioner is a undisputed legal heir to the 1st petitioner and to sustain the proceedings in main E.P.198/2012, the 2nd petitioner is 3 already ordered to come on record. Hence, the proceedings in E.P.198/2012 have to be closed by recording the delivery.

4.However, the legal heir of the original D.Hr., i.e., 2nd petitioner herein is directed to file neat copy of the petition showing him as legal heir of the original D.Hr for record purpose within three days from the date of this order.

5.With the above direction the E.P.198/2012 is closed and delivery orders on 3.5.2016 is effected. No costs.

Dictated to Stenographer Gr.II, transcribed by him corrected and

pronounced by me in open court on this the 27th day of November, 2017.

Sd/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

No oral or documentary evidence has been adduced by both sides.

Sd/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

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IN THE COURT OF THE SENIOR CIVIL JUDGE :: VIZIANAGARAM

Present:- Sri K.Rambabu,

Senior Civil Judge,

Vizianagaram

Monday, this the 27th day of November, 2017

E.P.No.107/2014 in O.S.215/2013

Between:-

Bora Eswara Reddy s/o. Late Pentayya Reddy, Hindu, aged 54 years, Hindu, business r/o. Door No.9-7-30, West Baliji street, Vizianagaram

..PETITIONER/D.Hr

A n d :-

Boddepalli Shanmukharao s/o. Venkatarao, Hindu, aged 40 years, business, resident of Sri Nagar Colony, Gajularega, Vizianagaram

.. RESPONDENT/J.Dr

This petition coming on this day before me in the presence of Sri

B.Neeladrirao, advocate for the petitioner/D.Hr and of Sri R.Suryanarayana, advocate for the respondent/J.Dr, after having stood over for consideration till this day, this court passed the following:-

O R D E R

1.This application is filed under Or.21 Rule 37 CPC by the petitioner/D.Hr basing on the decree dated 7.3.2014 for realisation of the decretal amount and costs.

2.The contention of the petitioner is that even prior to and after passing the decree no amount is paid by the J.Dr.

3.A statutory notice under Or.21 Rule 37 CPC is issued to the

J,Dr. The J.Dr is called absent on 7.10.2014. Again the J.Dr is brought under arrest on 8.12.2016 and he is released liberally by giving one month’s time 2 on 8.12.2016. Again, after herculean task, the J.Dr is arrested and brought

before this court on 27.11.2017.

3.At this stage, the D.Hr is examined as P.W.1. According to the evidence of P.W.1, the J.Dr is an able bodied person earning Rs.3,000/-per day from his business and also vegetable commission business. The J.Dr is hale and healthy and he is not coming forward to pay even part of the decretal amount. It shows the avoiding nature of the J.Dr, in not paying the decretal amount. Considering the means of the J.Dr and evidence of P.W.1, it is a fit case to send the respondent/J.Dr to civil prison, to suffer imprisonment under Sec.58(1)(a) C.P.C, and he shall be released either after expiry of the period of imprisonment of one month, or, on payment of entire decretal amount, as per law, whichever is earlier.

4.IN THE RESULT, the E.P. is allowed with costs ordering the

J.Dr to be sent to civil prison to suffer imprisonment for ONE MONTH under

Sec. 58(1)(a) CPC, and he shall be released either on payment of the amount, or after expiry of period of one month, whichever is earlier.

Dictated to Stenographer Gr.II, transcribed by him corrected and

pronounced by me in open court on this the 27th day of November, 2017.

K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

Appendix of evidence

Witnesses examined

For petitioner:-For respondent: NONE

P.W.1:Bora Eswara Reddy

Documents marked

No documents are marked on either side

Sd/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

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IN THE COURT OF THE SENIOR CIVIL JUDGE :: VIZIANAGARAM

Present:- Sri K.Rambabu,

Senior Civil Judge,

Vizianagaram

Monday, this the 27th day of November, 2017

E.P.No.107/2014 in O.S.215/2013

Between:-

Bora Eswara Reddy s/o. Late Pentayya Reddy, Hindu, aged 54 years, Hindu, business r/o. Door No.9-7-30, West Baliji street, Vizianagaram

..PETITIONER/D.Hr

A n d :-

Boddepalli Shanmukharao s/o. Venkatarao, Hindu, aged 40 years, business, resident of Sri Nagar Colony, Gajularega, Vizianagaram

.. RESPONDENT/J.Dr

This petition coming on this day before me in the presence of Sri

B.Neeladrirao, advocate for the petitioner/D.Hr and of Sri R.Suryanarayana, advocate for the respondent/J.Dr, after having stood over for consideration till this day, this court passed the following:-

O R D E R

1.This application is filed under Or.21 Rule 37 CPC by the petitioner/D.Hr basing on the decree dated 7.3.2014 for realisation of the decretal amount and costs.

2.The contention of the petitioner is that even prior to and after passing the decree no amount is paid by the J.Dr.

3.A statutory notice under Or.21 Rule 37 CPC is issued to the

J,Dr. The J.Dr is called absent on 7.10.2014. Again the J.Dr is brought under arrest on 8.12.2016 and he is released liberally by giving one month’s time 2 on 8.12.2016. Again, after herculean task, the J.Dr is arrested and brought

before this court on 27.11.2017.

3.At this stage, the D.Hr is examined as P.W.1. According to the evidence of P.W.1, the J.Dr is an able bodied person earning Rs.3,000/-per day from his business and also vegetable commission business. The J.Dr is hale and healthy and he is not coming forward to pay even part of the decretal amount. It shows the avoiding nature of the J.Dr, in not paying the decretal amount. Considering the means of the J.Dr and evidence of P.W.1, it is a fit case to send the respondent/J.Dr to civil prison, to suffer imprisonment under Sec.58(1)(a) C.P.C, and he shall be released either after expiry of the period of imprisonment of one month, or, on payment of entire decretal amount, as per law, whichever is earlier.

4.IN THE RESULT, the E.P. is allowed with costs ordering the

J.Dr to be sent to civil prison to suffer imprisonment for ONE MONTH under

Sec. 58(1)(a) CPC, and he shall be released either on payment of the amount, or after expiry of period of one month, whichever is earlier.

Dictated to Stenographer Gr.II, transcribed by him corrected and

pronounced by me in open court on this the 27th day of November, 2017.

K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

Appendix of evidence

Witnesses examined

For petitioner:-For respondent: NONE

P.W.1:Bora Eswara Reddy

Documents marked

No documents are marked on either side

Sd/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

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