Banu Safia vs A.Maria John
2021 Latest Caselaw 24476 Mad

                                                                           C.R.P.(NPD).No.2644 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 13.12.2021

                                                          CORAM:

                                  THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

                                               C.R.P.(NPD).No.2644 of 2021
                                                          and
                                                 C.M.P.No.19572 of 2021

                     Banu Safia                                                    .. Petitioner

                                                             Vs.

                     A.Maria John                                                  .. Respondent




                     PRAYER: Civil Revision Petition filed under Section 115 of the Code of
                     Civil Procedure, praying to set aside the fair and decreetal order of the I
                     Additional Subordinate Judge's Court a Erode, dated 27.01.2021 in
                     E.A.No.126 of 2018 in E.A.No.93 of 2017 in E.P.No.4 of 2013 in
                     O.S.No.417 of 1995.

                                     For Petitioner      : Mr.P.Valliappan
                                                           for M/s.PV Law Associates

                                                          ********



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https://www.mhc.tn.gov.in/judis
                                                                                C.R.P.(NPD).No.2644 of 2021

                                                            ORDER

This Revision is against the order dismissing the application filed by

the petitioner seeking appointment of Commissioner to note down the

physical features existing around the property and submit a detailed report

along with a plan.

2. This application has been filed in execution proceedings, where the

respondent/ decree holder sought to execute a decree for specific

performance granted to her in O.S.No.417 of 1995. The said suit came to be

decreed on 10.04.2007. The decree has become final and an Execution

Petition in E.P.No.4 of 2013 has been filed by the decree holder seeking

execution of the decree. Delivery was ordered. The Court amin, who went

to effect delivery, returned the warrant, stating that the delivery could not be

effected, for want of assistance by Surveyor, as he could not identify the

property. Therefore, the decree holder filed E.A.No.92 of 2017 for

appointment of Surveyor and the same is pending.

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.2644 of 2021

3. In the interregnum, claiming that a compromise agreement has been

entered into on 23.04.2016, the petitioner had filed an application in

E.A.No.93 of 2017, seeking to pass an order to record the compromise and

the same is pending. It is in that application, the petitioner has filed the

instant application in E.A.No.126 of 2018, seeking appointment of

Commissioner with a strange prayer for noting down the physical features of

the property existing in and around the suit property.

4. The learned I Additional Subordinate Judge, Erode, who heard the

application, dismissed it, concluding that when the application for

appointment of Surveyor by the decree holder is pending, this application

for appointment of Commissioner is wholly unnecessary. He had also

pointed out the pendency of E.A.No.93 of 2017 filed by the judgment debtor

seeking to record compromise

5. Mr.P.Valliapan, learned counsel appearing for the petitioner would

vehemently contend that there is a dispute regarding identity of the property.

The decree being one for specific performance, it is all the more required

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.2644 of 2021

that the identity of the property is clearly fixed, before the Court proceeds

further. According to the counsel the Commissioner's report would be a

great help to fix the identity of the property.

6. No doubt, the submission of the counsel appears to be very

attractive. On the facts and circumstances of the case, I do not think the

application by the judgment debtor seeking appointment of Commissioner

in the execution proceedings could be said to be bona fide. As already

pointed out the ameen has returned the warrant on the ground that he needs

assistance of the Surveyor. The decree holder has filed application seeking

appointment of Surveyor and the same is pending. The report of the

Surveyor will remove the difficulty in identification of the property.

Therefore, the present application, to my mind, is wholly unnecessary.

7. The learned Subordinate Judge also taken the same view. I do not

see any reason to interfere with the conclusion of the learned Subordinate

Judge. Therefore, the Revision fails and it is accordingly dismissed. No

costs. Consequently, the connected miscellaneous petition is closed.

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.2644 of 2021

8. The Executing Court is directed to take up E.A.Nos.92 and 93 of

2017 which are pending before it and dispose them of within a period of

three (3) months from the date of receipt of a web copy or a certified copy

of the order and report such disposal to this Court.

13.12.2021

dsa Internet :Yes Index : No Speaking order

To The Subordinate Judge, Erode.

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.2644 of 2021

R.SUBRAMANIAN, J.

dsa

C.R.P.(NPD).No.2644 of 2021

13.12.2021

https://www.mhc.tn.gov.in/judis