Madras High Court
P.Ramamoorthy vs S.Meyakkelraj on 6 October, 2021
C.R.P.(NPD)(MD)No.2565 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.(NPD)(MD)No.2565 of 2012
P.Ramamoorthy : Petitioner/ Petitioner/Plaintiff
Vs.
1.S.Meyakkelraj
2.Ramajeyam : Respondents/Respondents/Defendants
Prayer: Civil Revision Petition is filed under Section 115 of Code of
Civil Procedure to set aside the fair and decreetal order dated 13.08.2012
rejecting E.P.No.141 of 2004 in O.S.No.147 of 1997, on the file of
learned Principal District Munsif, Karaikudi.
For Petitioner : Mr.M.Rahman
for Mr.S.Madhavan
For Respondents : Mr.Mohamed Haneef
for Mr.M.P.Senthil
1/9
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD)(MD)No.2565 of 2012
ORDER
The petitioner had filed a O.S.No.147 of 1997, on the file of the
Principal District Munsif Court, Karaikudi, praying for a decree of
permanent injunction in respect of plaint 'A' Schedule and a decree of
mandatory injunction in respect of plaint 'B' Schedule. The suit was
partly decreed by the Trial Court, by judgment and decree dated
27.06.2003. The learned Trial Judge decreed the suit in respect of plaint
'A' Schedule. However, the prayer in respect of plaint 'B' Schedule was
negatived.
2.Alleging that the respondents have violated the decree of
injunction granted by the Trial Court, the petitioner has filed an
Execution Petition in E.P.No.141 of 2004 on the file of the Principal
District Munsif, Karaikudi. The learned Executing Judge, had appointed
an Advocate Commissioner.
3.After perusing the Commissioner Report, the learned Executing
Judge had dismissed the application filed by the petitioner stating that the
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C.R.P.(NPD)(MD)No.2565 of 2012
respondents have already put up construction and that the remedy
available to the petitioner is only by filing a separate suit for removal of
construction. The order dated 13.08.2012, is now assailed in this Civil
Revision Petition.
4.The learned counsel for the petitioner would submit that the
petitioner had filed E.P.No.141 of 2004 alleging that there was a
disobedience, at the instance of respondents. The petitioner contended
that he was granted injunction in respect of 4372-1/2 sq.ft. and the
respondents are preventing him from enjoying the property. The
Executing Court has appointed an Advocate Commissioner and the
Advocate Commissioner has also filed his report stating that the
petitioner is not permitted to enjoy 4372-1/2 sq.ft. of land, which is
shown as 'A' Schedule to the decree dated 27.06.2003. When the
Advocate Commissioner has given a specific finding that the petitioner is
prevented from enjoying the fruits of the decree, the Executing Court
ought to have ordered for removal of construction, since the construction
had been done against the decree passed in O.S.No.147 of 1997,
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C.R.P.(NPD)(MD)No.2565 of 2012
whereas, the Executing Court had erroneously held that the petitioner has
to file a separate suit for removal of encroachment.
5.The learned counsel for the petitioner would further submit that,
when the matter was listed on 30.06.2015, there was no appearance for
the respondents. This Court find that the Executing Court without
reference to the Advocate Commissioner's Report had dismissed the EP,
remitted the matter back to the Executing Court for fresh consideration
based on the Advocate Commissioner's report. Subsequently, the
respondent had filed the M.P.No.1 of 2015 to restore CRP (MD)No.
2565 of 2012 stating that no opportunity was given to him and this Court
by order dated 29.09.2015 has restored this Civil Revision Petition for
fresh consideration and the matter stands posted now.
6. The learned counsel for the petitioner would further submit that
the Executing Court committed an error without reference to the report
submitted by the Advocate Commissioner. This court by an order dated
30.06.2015 had only set aside the order and remitted the matter back to
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C.R.P.(NPD)(MD)No.2565 of 2012
the concerned Court for fresh consideration after reference to the
Advocate Commissioners report.
7. The learned counsel respondent would submit that the
respondents have not committed any violation of the order and that they
have not violated the decree of injunction granted in O.S.No.149 of
1997. However, he would submit that, he has no objection in the matter
being remitted back to the Court and the Trial Court may be directed to
pass order afresh after considering the report of the Advocate
Commissioner.
8.Heard the learned counsel appearing on either side perused the
materials available on record.
9.The learned Executing Judge appears to have decided the matter
without reference to the report submitted by the Advocate Commissioner.
The Executing Court without properly analyzing the report of the
Advocate Commissioner has passed an order stating that in case the
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C.R.P.(NPD)(MD)No.2565 of 2012
respondent has put up a superstructure, the remedy available to the
petitioner is only to file a separate suit and the execution petition is not
the remedy under the said circumstances. It is to be noted that the
petitioner was given a decree in respect of a specified extent of property.
The decree has become final. It is the case of the petitioners that the
respondents have encroached into a portion of his property and that he is
not permitted to enjoy the fruits of the decree. The Advocate
Commissioner has already conducted enquiry and submitted the report
and plan. The Executing Judge ought to have considered the report
submitted by the Advocate Commissioner while deciding the application
EP No.141 of 2004, whereas the learned Executing Judge without
reference to the Commissioner's Report had straightaway dismissed the
E.P. This court is of the view that the matter request fresh consideration
by the learned Executing Judge taking into consideration the report of the
Advocate Commissioner.
11. In the result, the Civil Revision Petition is allowed and the
order dated 13.08.2012, passed in E.P.No.141 of 2004, is set aside. The
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C.R.P.(NPD)(MD)No.2565 of 2012
matter is remitted back and the Execution Petition in E.P.No.141 of 2004
is restored to the file and the Executing Court is directed to consider the
matter afresh after taking into consideration the report of the Advocate
Commissioner, dated 03.01.2011. However, it is also made clear that if
the Court feels that a fresh report has to be obtained at this stage, the
Executing Court is at liberty to re-issue warrant to the same Advocate
Commissioner to file a report regarding the present status or else it shall
pass orders based on the report of the Advocate Commissioner dated
03.01.2011 which is available now. The Trial Court shall independently
consider the issue based on the report of the Advocate Commissioner
without reference to any observations made by this Court in the Civil
Revision Petition. No costs.
06.10.2021
Index:Yes/No
Internet:Yes/No
RM
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C.R.P.(NPD)(MD)No.2565 of 2012
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
The Principal District Munsif Court,
Karaikudi.
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD)(MD)No.2565 of 2012
A.D.JAGADISH CHANDIRA, J
RM
Order made in
C.R.P.(NPD)(MD)No.2565 of 2012
06.10.2021
https://www.mhc.tn.gov.in/judis/
