Selvaraj vs C.Mohamed Ali (Deceased)
2021 Latest Caselaw 2059 Mad

                                                                     C.R.P.(NPD)No.1632 of 2004

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 01.02.2021

                                                     CORAM

                                   THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

                                            C.R.P.(NPD).No.1632 of 2004
                                            and C.M.P.No.12864 of 2004

                     1. Selvaraj
                     2. Renuka                                             ... Petitioners

                                                        Vs.
                     1. C.Mohamed Ali (Deceased)
                     2. M.Mumtaz Begum
                     3. Noorjahan
                     4. Mehrojahan
                     5. Bowja Begum
                     6. Maideen Basha
                     7. Amsa Begum
                     8. Askar Ali
                     9. Minor Aazaad Ali
                     10. Minor Fathima Begum
                        (R9 & R10 represented by
                        their mother and next
                        friend and guardian
                        the second respondent)
                     (R2 to R10 brought on record as LRs of the
                     deceased sole respondent vide Court order
                     dated 18.12.2017 made in CMP.Nos.215 to
                     217 of 2011 in C.R.P.No.1632 of 2004)                 ... Respondents




                     Page 1 of 6


https://www.mhc.tn.gov.in/judis/
                                                                              C.R.P.(NPD)No.1632 of 2004

                     Prayer :- Civil Revision Petition is filed under Article 227 of the
                     Constitution of India, to set aside the fair and decretal order dated
                     20.04.2004 made in E.A.No.Nil of 2004 in E.P.No.178 of 2002 in
                     O.S.No.255 of 1987 on the file of the learned Principal District Munsif,
                     Villupuram.
                                              For Petitioners  : Mr.T.S.Baskaran
                                              For Respondents : No appearance
                                                             ORDER

This Civil Revision Petition is directed as against the fair and

decretal order dated 20.04.2004 passed by the learned Principal District

Munsif, Villupuram, in E.A.No.Nil of 2004 in E.P.No.178 of 2002 in

O.S.No.255 of 1987, thereby rejecting the application for appointment of

the Advocate Commissioner.

2. The petitioners are the defendants in the suit filed by the

deceased respondent herein for declaration and recovery of possession.

Though initially the suit was dismissed, in the appeal suit, it was decreed

and same was confirmed in S.A.No.1401 of 1991 by the judgment and

decree dated 06.12.2001. On the strength of the said decree, the deceased

respondent filed execution petition in E.P.No.178 of 2002. While pending

https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.1632 of 2004

the execution petition, the petitioners filed a petition for appointment of

Advocate Commissioner to survey the B schedule property with the help of

surveyor and to note down the physical features and its measures. The

execution Court dismissed the above said application against which, the

present revision petition has been filed.

3. The learned counsel appearing for the petitioners would submit

that while pending the suit, the plaintiff/deceased respondent put up a

construction in the B schedule property. Initially the suit was dismissed and

thereafter it was decreed by the appellate Court. Therefore, it is just and

necessary to appoint an Advocate Commissioner to survey the B schedule

property and also to verify whether any construction put up by the

respondents or not with the help of the surveyor.

4. It is seen that the suit is filed for declaration and recovery of

possession. On perusal of suit schedule property in the decree as well as the

execution proceeding, both are one among the same. Though the learned

counsel appearing for the petitioners contended that the plaintiff/deceased

https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.1632 of 2004

respondent put up some construction in the B schedule property, the same

will not change the suit schedule property and no impediment for the

Execution Court to proceed further. Therefore, the Court below rightly

rejected the petition filed by the petitioners for appointment of Advocate

Commissioner. This Court finds no infirmity or illegality in the order passed

by the trial Court. However, the execution petition is of the year 2004 and it

is pending before the Execution Court for the past 16 years, the Execution

Court viz., the Principal District Munsif Court, Villupuram, is directed to

complete the execution proceedings within a period of three months from

the date of the receipt of a copy of this Order.

5. Accordingly, this Civil Revision Petition stands dismissed.

There shall be no order as to costs. Consequently, connected miscellaneous

petition is closed.

01.02.2021

Internet : Yes Index : Yes/No Speaking order/Non-speaking order rts

https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.1632 of 2004

To

1. The Principal District Munsif, Villupuram.

2. The Section Officer, V.R. Section, Madras High Court, Chennai.

https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.1632 of 2004

G.K.ILANTHIRAIYAN, J.

rts

C.R.P.(NPD).No.1632 of 2004 and C.M.P.No.12864 of 2004

01.02.2021

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