Unknown vs 9 Cpc To Appoint An Advocate To ...
2023 Latest Caselaw 3830 AP

            THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

              Civil Revision Petition No.331 of 2023

ORDER:

This revision is filed under Section 115 CPC challenging the

docket order, dated 23.11.2022, passed in E.A.No.303 of 2019 in

E.P.No.390 of 2016 in O.S.No.380 of 1999 on the file of the Court of

the Principal Junior Civil Judge, Kadapa, filed under Order XXVI Rule

9 CPC to appoint an advocate to visit the EP schedule property and

take the measurements of the constructions made by the

respondents/DHrs in the EP schedule property and also to note

down the surrounding existing physical features in the EP schedule

property.

2. Heard Ms. M. Siva Jyothi, learned counsel for the revision

petitioner/Judgment debtor and Ms. Sodum Anvesha, learned

counsel for the respondents/decree holders.

3. The DHrs filed execution petition under Order XXI Rule 32(1)

CPC against B. Sreenivasulu/JDr (since died) and other

respondents, namely, B. Murali Krishna, Krishna Murthy and

B. Subbarayudu to commit them to civil prison for a period of three

months for violation of the decree in the suit. In this connection,

the DHrs stated that the plaintiffs filed the above suit claiming

permanent injunction in respect of the properties in the suit

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schedule against the defendants and the defendants and others filed

a counter claim in O.S.No.247 of 2001 for declaration of title and for

mandatory injunction for removal of encroachments allegedly made

by the plaintiffs 1 & 2 in O.S.No.380 of 1999. The suit was decreed

as prayed for and the counter claim of the defendants was

dismissed. The defendants have not preferred any appeal and the

order of the Court has thus become final. While so, the 1st plaintiff

died leaving behind his widow and son who are the petitioners 3 & 4

herein. The respondents 2 to 4 herein are objecting their possession

over the plaint schedule property and are residing opposite to the

house of the petitioners beyond the road. While so, recently, in the

month of April, when the petitioner wanted to remove the old tiled

haveli in order to construct RCC house, the respondents 3 & 4

obstructed the work of the petitioners though they are aware of the

decree passed against them. The respondents have violated the

decree in the above suit and are liable for prosecution. Hence the

execution petition was filed.

4. The EP schedule is as follows:

SCHEDULE

Vacant site and Haveli bearing new D.No.6/622, 2/623 and 2/625 (Old. D.Nos.2/244, 2/245 and 2/246) situated in Eswarsingh Street, admeasuring East-west: 25 feet, North-

     South: 45 feet bounded by

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        East :      Rajarajeswari temple
        West :      house bearing D.No.2/626
        North :     Rastha
        South :     Rastha

5. The 1st respondent/DHr filed counter opposing the petition

and briefly averring as follows:

The petitioners filed the petition without prior permission from

the Court under the Limitation Act against 1st respondent and

hence, it is not maintainable under law. The respondents 3 & 4

have already died before filing of the execution petition, but,

surprisingly, the petitioners mentioned in the execution petition that

respondents 3 & 4 who died obstructed them in their construction

work. The petitioners did not file any material showing that

respondent obstructed the petitioners in their construction. As per

the decree, the petitioners are entitled only to vacant site and

Havelis measuring 25 feet East to West and 45 feet North to South.

But, under the guise of the decree, the petitioners are claiming

more than the site covered by the decree. Without filing succession

certificate to prove that petitioners 2 to 4 are the legal heirs of the

deceased G.V.Subbarayudu, the petition is not maintainable.

Hence, the petition is liable to be dismissed.

6. Thereafter, E.A.No.303 of 2019 was filed stating that the DHrs

filed execution petition contending that the petitioner/JDr is illegally

and highhandedly obstructing the DHr from enjoying the EP

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schedule property, but, as per the decree, the measurements of the

schedule property are East to West:25 feet from North to South: 45

feet. However, DHrs are making constructions in more extent than

what was shown in the schedule and making allegations against the

petitioner as though he is obstructing them from enjoying the EP

schedule property. The petitioner further stated that on the

northern side of EP schedule property, there is a rastha and on the

further south of the said rastha, there is a vacant site belonging to

the petitioner. Two wheelers and other waste material are being

kept by the petitioner in that vacant site. The petitioner further

stated that taking advantage of the decree, the respondents/DHrs

are trying to occupy the vacant site of the petitioner which is

situated on the further South of the rastha which is the southern

boundary of the EP schedule property. As such, the petitioner seeks

to appoint an advocate commissioner for the above said purpose.

7. The petition was opposed by filing counter of respondents/

DHrs stating that Order XXVI Rule 9 CPC has no application to the

execution proceedings and in the present case, a commissioner was

already appointed in this suit and a report was filed by the

commissioner and that the present application is only to delay the

execution proceedings. It is further contended that it is settled law

that boundaries prevail over the extents and measurements.

However, the JDr is unnecessarily raising dispute regarding the

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measurements, and therefore, there is no necessity to appoint a

Commissioner.

8. After hearing both parties, the execution Court dismissed the

petition observing that the specific boundaries were mentioned in

the decree as per which the southern boundary is rastha and in case

there is any violation, the petitioner can approach the appropriate

Court of law for getting proper relief, but, in the present case, a

commissioner cannot be appointed without specific evidence by way

of photographs etc and moreover, the decree was passed in

O.S.No.389 of 1999. As such, the execution Court observed that it

appears that the present petition is intended to drag on the matter

further to deny the fruits of the decree to the DHrs.

9. Having been aggrieved by the order, this revision is preferred

mainly contending that appointment of commissioner was sought as

the DHrs, taking advantage of the decree, occupied the site of the

revision petitioners and made constructions in the site situated on

the further south of rastha and only if a commissioner visits, the

truth would come out. It is further contended that the observations

of the execution Court are not proper in dismissing the petition.

10. The learned counsel for the revision petitioner submitted that

since the DHrs are asking a harsh remedy of sending the JDr to civil

prison by contending violation of the decree for perpetual

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injunction, it is necessary to appoint a commissioner to prove that

there is no violation as alleged by the DHrs. She further submitted

that in fact, the DHrs are trying to make constructions beyond the

measurements given in the decree and trying to encroach into the

site of the JDr and that can be established only by appointment of a

commissioner. She further submitted that the attitude of the DHrs

is clear from the averments in the execution petition stating that

respondents 2 to 4 are highhanded persons and are objecting

possession of the DHrs over the plaint schedule property and that

they are residing opposite to the house of the DHrs beyond the

road. In this regard, she further stated that even in the cause title

of the execution petition, the respondents 2 & 3 are shown as 'died',

yet allegations are made against the respondents 2 & 3 also and

there is no 4th respondent. She further placed reliance on the

decision of the High Court in Chakka Ranga Rao v. Molla Mustari

Banu 1 , wherein, the High Court has referred the decision of the

apex Court in Prathiba Singh v. Shanti Devi Prasad of its

judgment reading........

"After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case -

which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting

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the merits of the case, it may be corrected under Section 152 CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In this case, since the dispute is with regard to the actual area encroached by the defendant, it would be appropriate to appoint an Advocate Commissioner to take measurements of the portions shown as A.B.C.D and E.F.G.H in the plaint plan, with reference to the title deeds dated 11-8-1977 and 10-4-1980 of the respondent (plaintiff) and also the title deeds of the revision petitioner (defendant) under which he acquired B.E.G.D portion of the plaint plan, with the help of a qualified Surveyor. If the areas and portions purchased by the respondent and revision petitioner are identified, localized and demarcated, the area encroached by the revision petitioner into the site belonging to the respondent can easily be known. So it is just and expedient to appoint a Commissioner as such appointment serves the interest of justice."

Further, it was held at paragraph No.7 as follows:

"7. Therefore, the revision is allowed. The Executing Court shall appoint an Advocate Commissioner to identify and localise the sites shown as A.B.D.C. and E.F.H.G. in the plaint plan with reference to the title deeds dated 11-8-1977 and 10-4-1980 of the respondent (plaintiff) and the site of the revision petitioner shown as B.E.G.D in the plaint plan with reference to his title deed, with the assistance of a qualified Surveyor, and note and demarcate the area of encroachment made by the revision

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petitioner into the portions to the north of B.D. line and south of E.G line shown in the plaint plan and file his report."

11. On the other hand, learned counsel representing DHrs

submitted that there is no need to again appoint a commissioner in

the execution proceedings since already a commissioner was

appointed during trial in the suit in this case and report was also

field as can be seen from exhibit C1 and plan as exhibit C2 in the

list of evidence. He further submitted that in the counter filed by

the JDrs, they stated encroachment on northern and western sides

whereas now, in the present petition, it is stated as though it is in

the southern side. He further stated that the boundaries of the suit

schedule property are not in dispute and moreover, they are

finalized by passing a decree, and therefore, they cannot be

disputed now by the JDr. It is also submitted by him that after long

time of filing the execution petition, this petition came to be filed by

JDr. He placed reliance on the decision of High Court in Vadlamani

suryanarayana Murthy v. Saripalli Balakameswari by L.Rs.2,

wherein at paragraph No.8, it was held as follows:

"8. Once the decree passed in favour of the petitioner has become final, it is not at all open to the respondent, or to the executing Court, to doubt its correctness or to modify its purport. If any property other than the one specified in the schedule is sought to be proceeded against, the respondents can certainly put forward their grievance, and it shall always be

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competent for the executing Court, to adjudicate the same. The appointment of a Commissioner, in matters of this nature, would amount to reopening the entire issue, and may even lead to a situation of annulling the decree, as a whole."

(b) He further placed reliance on the decision in Subhaga and

others v. Shobha and others3, wherein it was held at paragraph

No.6 as follows:

"6. The High Court has also upheld the title claimed by the plaintiff over the plot, Plot No. 1301/1 Ba. Once we accept the identification made by the Commissioner as was done by the first appellate court, it is clear that the plaintiff has the right to have the disputed construction removed and the well filled up. That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner had identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find our whether an encroachment was made in the land belonging to the plaintiff. In this situation, we are satisfied that the judgment and decree of the High Court calls for interference. We are also satisfied that the lower appellate court was justified in affirming the decree granted in favour of the plaintiff on the pleadings and the evidence in the case."

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(c) He also placed reliance on the decision of this Court in

M. Rama Chandraiah v. Valleupu China Ankaiah 4 , wherein it

was held at paragraph No.9 as follows:

"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."

12. There is no dispute about the boundaries mentioned in the EP

schedule which is akin to the decree schedule of the property. The

dispute is not with regard to the correctness of the boundaries on

record, whereas the dispute is because the JDr/revision petitioner

contends that the DHrs are making constructions beyond the

boundaries mentioned in the EP schedule and encroaching into his

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site which is situated after the rastha on the southern side of the EP

schedule property, but, they are throwing the blame on the JDr as

he is violating the decree. Therefore, the report submitted earlier

by the commissioner when the suit was pending does not help to

show the facts existing as on today. Whether the DHrs are making

constructions within the boundaries mentioned in the EP schedule or

encroaching into the site of the JDr as claimed can be better

appreciated only if the commissioner is appointed. At this juncture,

it is pertinent to refer the significant contention of the DHrs stated

in the counter that 'boundaries prevail over the extent of land and

the measurements' which is significant. It indicates that

construction is not within the extent mentioned in the boundaries as

per the measurements. What the DHrs claim could be as per the

description of the boundaries, but not the measurements, however,

the DHrs claim that JDr is violating the decree passed against him.

Therefore, this dispute can be resolved only by physical inspection

and localization of the property by a commissioner. Without going

into the real dispute involved in this case, the execution court has

erroneously dismissed the petition. As such, the impugned order is

liable to be set aside.

13. In the result, the Civil Revision Petition is allowed setting

aside the impugned order, dated 23.11.2022, passed in E.A.No.303

of 2019 in E.P.No.390 of 2016 in O.S.No.380 of 1999 and the

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execution Court is directed to appoint an advocate commissioner,

fix his/her fee and direct the Commissioner to take measurements

and submit a report as per the prayer in the petition. The executing

Court may give further instructions, if necessary, to the

Commissioner as well as both the parties.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.

___________________ B.S.BHANUMATHI, J 08-08-2023 RAR