Madras High Court
Raja vs Kalimuthu on 10 November, 2022
CRP(MD)Nos.1896 and 1897 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 10.11.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(MD)Nos.1896 and 1897 of 2022 and
CMP(MD)Nos.8534 and 8535 of 2022
Raja ... Petitioner
in CRP(MD)No.1896 of 2022
Jeyam ... Petitioner
in CRP(MD)No.1897 of 2022
Vs
Kalimuthu ... Respondents
in both petitions
PRAYER: Civil Revision Petitions are filed under Section
115 of CPC, to set aside the decree and judgment passed by
the District Munsif Court, Andipatti in EA.No.11 of 2022 in
EA.No.7 of 2021 against EP.No.14 of 2019 in OS.No.62 of
2005 and EA.No.11 of 2022 in EA.No.7 of 2021 against
EP.No.10 of 2019 in OS.No.58 of 2005 dated 04.07.2022.
For Petitioner :Mr.V.Sriram
For Respondent :Mr.M.Saravanan
ORDER
These civil revision petitions are filed challenging
the decree and judgment passed by the District Munsif
Court, Andipatti in EA.No.11 of 2022 in EA.No.7 of 2021
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CRP(MD)Nos.1896 and 1897 of 2022
against EP.No.14 of 2019 in OS.No.62 of 2005 and EA.No.11
of 2022 in EA.No.7 of 2021 against EP.No.10 of 2019 in
OS.No.58 of 2005 dated 04.07.2022 respectively.
2.The respondent / plaintiff has filed the suits in
OS.No.62 of 2005 and 58 of 2005 before the District Munsif,
Andipatti for mandatory injunction and recovery of
possession with regard to the suit schedule property in
survey No.1377/2B5 to an extent of 29 Ars. The suits were
decreed. The petitioners/ defendants have filed appeals
and the appeals were dismissed. Thereafter, the respondent/
plaintiff has initiated execution proceedings in EP.Nos.14
and 10 of 2019. Delivery was ordered and effected on
21.12.2020.Thereafter, the petitioners filed an application
in EA.Nos.7 of 2021 under Section 47 of CPC alleging that
delivery was effected over and above the decree mentioned
property, wherein an application in EA.No.10 of 2021 was
filed for appointment of advocate commissioner. The said
application was allowed, advocate commissioner was
appointed and he has also filed his report on 23.04.2022.
However, the petitioners raised certain objections to the
report of the advocate commissioner on 28.04.2022 that the
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CRP(MD)Nos.1896 and 1897 of 2022
advocate commissioner has not noted down the delivered suit
schedule property properly. The execution court rejected
the application filed in EA.Nos.7 of 2021. Again the
petitioner has filed an application in EA.Nos.11 of 2022
for re-issuance of warrant to the same advocate
commissioner. The said applications were dismissed by fair
and decreetal order dated 04.07.2022. Challenging the same,
the present civil revision petitions are filed.
3.The learned Counsel for the petitioners submits that
the advocate commissioner has not properly measured the
suit property and he measured the present property, which
is in possession of the petitioners. The petitioners were
having electricity connections in their property and during
the pendency of the execution proceedings, it was
disconnected. Their existence was not noted down by the
advocate commissioner. The purpose of appointment of the
advocate commissioner is only to measure the suit schedule
property and the extent of the property, now the
petitioners posses. However, the advocate commissioner
filed his report without noting down the disconnection of
the electricity connection and has not noted down whether
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CRP(MD)Nos.1896 and 1897 of 2022
it was in the suit property or it was in the property,
which is in possession of the petitioners. Therefore, the
issue can be decided only after ascertaining the above
facts by the advocate commissioner.
4.The learned Counsel for the respondent submits that
the Court has directed the advocate commissioner to
measure the property with the help of the surveyor and to
file his report. The advocate measured the property with
the help of the surveyor and filed his report that a
portion of the suit property is encroached by the
petitioner.
5.This Court heard the learned Counsel on either side
and perused the materials placed on record.
6.Though the advocate commissioner was appointed and he
has filed his report, the petitioners have grievance that
the advocate commissioner has not measured the property
properly as directed by the Court and in order to ascertain
the present status, the advocate commissioner has to be
appointed. Therefore, in order to ascertain the above
facts, these civil revision petitions are allowed on
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CRP(MD)Nos.1896 and 1897 of 2022
condition that each petitioner shall a pay a sum of
Rs.10,000/-[Rupees Ten Thousand] to the respondent within a
period of two weeks from the date of receipt of a copy of
this order. On filing of proof of cost, the trial Court
shall re-issue warrant to the advocate commissioner with a
direction to ascertain the extent of the suit property and
to find out whether any electricity connection was existing
in the suit schedule property or in the property, which is
now in possession of the petitioner and to file a report
before the trial Court and the trial Court shall consider
the same along with the earlier report of the advocate
commissioner and decide the issue afresh.
7.Accordingly, these civil revisions petitions are
allowed. Consequently connected miscellaneous petition
stand closed.
10.11.2022
dsk
To
The District Munsif,
Andipatti.
https://www.mhc.tn.gov.in/judis
CRP(MD)Nos.1896 and 1897 of 2022
B.PUGALENDHI, J.
dsk
CRP(MD)Nos.1896 and 1897 of 2022
10.11.2022
https://www.mhc.tn.gov.in/judis
