Madras High Court
Palanisami Gounder vs Ramaswamy Gounder on 26 September, 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on : 17.09.2025 Order pronounced on : 26.09.2025
CORAM
THE HONOURABLE MR JUSTICE P.B. BALAJI
CRP.No.1197 of 2023
& CMP.No.8222 of 2023
Palanisami Gounder ... Petitioner
Vs.
Ramaswamy Gounder ... Respondent
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, to set aside the order and decreetal order dated 12.08.2022 made in
E.A.No.45 of 2020 in E.P.No.16 of 2020 in O.S.No.180 of 2005 on the file
of the District Munsif Court, Kangeyam.
For Petitioner : Mr.P.Dhanasekaran
For Respondent : Mrs.Vijayakumari Natarajan
ORDER
The decree holder in O.S.No.180 of 2005, aggrieved by the dismissal
of E.A.No.45 of 2020 filed seeking appointment of an Advocate
Commissioner, has come by way of this revision petition.
2.I have heard Mr.P.Dhanasekaran, learned counsel for the
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petitioner/decree holder and Mrs.Vijayakumari Natarajan, learned counsel
for the respondent/1st judgment debtor.
3.The learned counsel for the petitioner would state that the decree
holder had filed the suit in O.S.No.180 of 2005 for declaration and
injunction and the suit was decreed. However, dissatisfied with the decree
granted in his favour, the plaintiff also filed A.S.No.20 of 2019 before the
Sub Court, Kangeyam. The said appeal came to be dismissed, confirming
the judgment and decree of the trial Court.
4.According to the learned counsel for the petitioner, the judgment
debtor has disobeyed the decree in favour of the revision petitioner and
hence, the petitioner was constrained to file the execution petition for arrest.
In the said EP, an application has been taken out for appointment of an
Advocate Commissioner with the help of a Surveyor to survey the lands as
per the decree passed in O.S.No.180 of 2005. It is the further contention of
the learned counsel for the petitioner that the petitioner, pending litigation,
has purchased adjoining lands as well and unless, an Advocate
Commissioner is appointed to inspect the property and correlate the same
with FMB, the Court will not be in a position to decide the execution
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petition effectively.
5.Per contra, the learned counsel for the respondent/1st judgment
debtor would state that the plaintiff is attempting to re-agitate the very same
issue that has been considered, not only by the Trial Court, but also the First
Appellate Court. She would also invite my attention to the specific findings
of the trial Court with regard to the portion of land which is now sought to
be brought to the limelight by the decree holder and appointment of a
Commissioner is sought for. She would refer to the trial Court specifically
negativing the contentions of the revision petitioner with regard to the said
portion of land and despite a decree being passed in favour of the revision
petitioner, she would contend that it was the revision petitioner who
preferred the First Appeal and it is only in respect of the very same portion
of the property which is now sought to be agitated in the execution petition.
She would therefore state that the executing Court has rightly held that it
cannot go behind the decree and nothing survives for re-inspection and the
issue has already been decided not only by the trial Court, but also the First
Appellate Court, and it is absolutely unnecessary for the executing Court to
appoint a Commissioner, that too, in the execution petition that has been
filed only for arrest of the judgment debtor.
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6.I have carefully considered the submissions advanced by the learned
counsel on either side.
7.Admittedly, the revision petitioner filed a suit in O.S.No.180 of
2005. The said suit, after contest, came to be decreed in favour of the
revision petitioner. Dissatisfied with the judgment and decree in his favour,
the plaintiff preferred A.S.No.20 of 2019. The First Appellate Court did not
see any merit in the appeal suit and dismissed the said appeal, confirming
the judgment and decree of the trial Court. The matter has attained finality
with the dismissal of A.S.No.20 of 2019 on 23.03.2020.
8.During trial of the suit, an Advocate Commissioner has been
appointed and after inspecting the property, with the assistance of the
Surveyor, he has filed a report, pointing out that there is a gap of 2.4 metres
between the properties of the plaintiff and the 1st defendant and if
S.No.153/12 is given as the boundary on the eastern side, then the 2.4 metres
in excess lying between S.Nos.153/12 and 153/13 would add up to the
plaintiff's extent, which would exceed the measurements mentioned even in
the plaint, more specifically, the suit property. The Appellate Court has also
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discussed the said issue elaborately and found that the plaintiff cannot take
undue advantage of an excess gap of 2.4 metres to which the plaintiff is not
entitled even as per the patta.
9.Also, referring to the fact that the plaintiff has confined the relief to
declaration to a specific length on all the four sides, the First Appellate
Court found that the trial Court did not commit any error in restricting the
decree to the measurements as projected by the plaintiff. Now the plaintiff
seeks for appointment of Advocate Commissioner in the execution petition.
10.Firstly, I find that the execution petition has been filed, alleging
violation of the decree in favour of the petitioner. It is for the petitioner to
establish that the defendant/1st judgment debtor has violated the decree
granted and that therefore, the 1st judgment debtor is liable to undergo
imprisonment. In the said execution petition, the petitioner/decree holder
cannot reopen the issues that have already concluded finally before the trial
Court and confirmed by the First Appellate Court, by seeking appointment
of an Advocate Commissioner, that too, for the very same purposes which
have already been elaborately dealt with by the trial Court as well as the
First Appellate Court.
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11.In fact, both the Courts have had the benefit of the report of the
Advocate Commissioner who in fact surveyed the lands only with the help
of surveyor. Therefore, there is no useful purpose in once again appointing
an Advocate Commissioner, that too, in order to decide the execution
petition filed for arrest, alleging disobedience of the decree in favour of the
revision petitioner. Rightly, the executing Court has found that the Court
cannot go behind the decree and that the Advocate Commissioner need not
be appointed in the present execution petition, which has been filed for arrest
of the judgment debtor and that it is always open to the petitioner/decree
holder to establish that the respondent/1st judgment debtor has disobeyed or
violated the decree and become entitled to the relief in the execution
petition. I do not find that the findings arrived at by the executing Court are
illegal or perverse, warranting interference in this revision.
12.In fine, the Civil Revision Petition is dismissed. There shall be no
order as to costs. Connected Civil Miscellaneous Petition is closed.
26.09.2025
Nuetral Citation: Yes/No
Speaking Order/Non-speaking Order
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Index : Yes / No
ata
To
The District Munsif Court, Kengeyam.
P.B. BALAJI,J.
ata
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Pre-delivery order made in
26.09.2025
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