THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
CIVIL REVISION PETITION No.581 of 2021
ORDER:-
The petitioner herein had filed O.S.No.667 of 2011
before the Principal Junior Civil Judge, Nellore against the
respondent herein and Vallepu Pedda Ankaiah for grant of
permanent injunction, restraining them from interfering with
the possession of the petitioner over the suit schedule property
consisting of Ac.3.02 cents of land in Sy.No.2066/1 of Nellore
Bit-1.
2. As Vallepu Pedda Ankaiah had passed away and
no others were taken to bring the L.Rs on record, the suit was
dismissed against the said Vallepu Pedda Ankaiah. However,
the suit was decreed against the respondent herein by a
judgment and decree dated 04.09.2017. The case of the
petitioner, which was accepted by the trial Court was that the
property originally belonged to the forefathers of the
respondent herein and the said property has been purchased
by the mother of the petitioner and another lady, by way of a
registered deed of sale dated 31.03.1960 and as such, the
petitioner herein had proved his title and possession over the
property. The trial Court also took into account in
W.P.No.12770 of 2011 filed by the petitioner herein to protect
his possession over the property against the action of the
revenue authorities, who sought to take over the said land on 2
the ground that it is assigned land under the Land
Encroachment Act, 1905.
3. After the disposal of the suit, the petitioner filed
E.P.No.182 of 2018 on the ground that the respondent was
seeking to violate the orders of the trial Court. At that stage,
the respondent herein moved E.A.No.233 of 2019 for
appointment of an advocate commissioner to note down the
physical features of the property. This application was filed by
the respondent on the ground that the respondent continues
to remain in possession of the property along with his children
in the houses constructed by them with asbestos sheet roof
and that he continued to cultivate the property by raising dry
crops. It was the contention of the respondent that as the
petitioner was never in possession of the schedule property
and as the judgment and decree was obtained by the
petitioner by suppressing true facts, the appointment of an
advocate commissioner to inspect the schedule property by
noting down the physical features and taking photographs of
the same would be sufficient for the Court to do justice.
4. The petitioner herein had filed his counter stating
that the respondent had already filed photographs of the
schedule property to make out his case and as such,
appointment of an advocate commissioner for filing
photographs would not be necessary. The petitioner also took
the plea that the application was filed only for the purpose of
protracting the litigation and would not serve any purpose. 3
5. The trial Court after considering the submission of
both sides, allowed the application by an order dated
02.12.2020, appointing an advocate commissioner to note
down the physical features of the petition schedule property
and to take photographs of the schedule property. Aggrieved
by the said order, the petitioner has approached this Court, by
way of the present civil revision petition.
6. The Executing Court took the view that for a just
determination of the case, appointment of an advocate
commissioner to note down the physical features of the
property and to take photographs of the property would meet
the ends of justice and no injustice would be caused to the
petitioner herein if the petition is allowed.
7. Sri Nuthalapati Krishna Murthy, learned counsel
for the petitioner would submit that appointment of an
advocate commissioner to note down the physical features is
effectively an application for adducing the fresh evidence to
over turn the judgment and decree passed by the trial Court.
He submits that such an exercise is impermissible by the
Executing Court as the Executing Court cannot go behind the
decree or arrive at findings which are at odds with the decree.
Even though a ground was taken in the revision petition that a
commissioner cannot be appointed in execution petition
proceedings, the same has not been pressed. 4
8. Sri C. Subodh learned counsel, appearing for the
respondent would submit that the said land is assigned land
which could not have been sold to the petitioner herein and in
any event, the respondent and his family members are
residing in the schedule property which can easily be
demonstrated by the advocate commissioner, noting down the
physical features of the property.
9. It is now settled law that an advocate
commissioner cannot be appointed to collect evidence and the
role of an advocate commissioner would be restricted to noting
down the physical features, for the purpose of assisting the
Court in arriving at a finding of fact where there is some
ambiguity or further material is necessary for the Court to
arrive at a finding. In the present case, the trial Court of
competent jurisdiction has already decided the question of
possession of the property in favour of the petitioner herein.
This finding cannot be over turned by the Executing Court
while passing orders in an Execution Petition. The Executing
Court ought not to have directed the appointment of an
advocate commissioner in such a circumstance. Further, the
Executing Court except stating that appointment of an
advocate commissioner would not be prejudicial to the interest
of the petitioner has not given any finding as to the lacuna or
ambiguity that needs to be clarified before the trial Court. In
the absence of such a finding, the trial Court could not have
directed the appointment of an advocate commissioner. 5
10. For all the aforesaid reasons, I am of the opinion
that the order of the Executing Court requires to be set aside.
11. Accordingly, the Civil Revision Petition is allowed.
There shall be no order as to costs.
Miscellaneous petitions, pending if any, in this Civil
Revision Petition shall stand closed.
___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 01.02.2022 RJS 6
THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
CIVIL REVISION PETITION No.581 of 2021
Date : 01.02.2022
RJS 7
