Gaddam Kotaiah vs Yatham Laxmi
2023 Latest Caselaw 3518 Tel

     THE HONOURABLE SMT JUSTICE P.SREE SUDHA

                    C.R.P.No.2495 of 2023

ORDER:

This Civil Revision Petition is filed against the order of

the Principal Junior Civil Judge, Kodad, dated 26.06.2023,

allowing E.A.No.28 of 2018 in E.P.No.23 of 2018 in

O.S.No.146 of 2010 filed by the plaintiff/Decree Holder,

who is the respondent herein, under Order XXVI Rule 9

C.P.C., seeking to appoint an advocate commissioner to note

down the violation of the decree passed in the aforesaid suit

and to fix boundaries to the suit schedule ' Baata' (passage).

2. Heard both sides and perused the material available

on record.

3. The respondent/plaintiff filed the above suit being

O.S.No.146 of 2010 for perpetual injunction restraining the

defendants and their men from interfering with her peaceful

possession and enjoyment of the suit schedule property by

using 'Baata', which is leading from Ganapavaram to

Kapugallu donka vagu bund. During the pendency of the

suit, an advocate commissioner was appointed by the trial

Court to note down the physical features of the suit

property along with 'Baata' and considering the report of

the advocate commissioner and the objections raised by

other side, the trial Court decreed said suit vide judgment

dated 13.11.2017. Thereafter, the respondent/plaintiff filed

E.P.No.23 of 2018 seeking to send revision

petitioners/defendants 1 to 3 to civil prison for wilful

disobedience of the said decree of perpetual injunction.

During the pendency of the said E.P., the respondent herein

filed E.A.No.28 of 2018 seeking to an appoint advocate

commissioner to note down the violation of the decree by

the revision petitioners 1 to 3/J.Drs. and also to fix the

boundaries to the suit schedule 'Baata'. The trial Court by

docket order dated 07.04.2022 allowed the said application

by appointing an advocate commissioner to note down the

physical features of the suit schedule property. Aggrieved

by the same, revision petitioners 1 and 2/J.Drs. filed

C.R.P.No.1241 of 2022 and this Court by order dated

01.07.2022 disposed of the said revision petition with a

direction to the trial Court to pass a reasoned order for

appointing or not appointing an advocate commissioner.

Thereafter, the trial court, after hearing both sides, allowed

E.A.No.28 of 2018 filed by the respondent/D.Hr. by order

dated 26.06.2023. Aggrieved by the said order, the revision

petitioners/J.Drs. again preferred the present revision

petition, inter alia, contending that the trial Court ought to

have dismissed the petition holding that it is not possible to

measure the schedule property and its 'Baata' without the

help of Tippan and Field Measurement Book because the

sub-division numbers and extents will be mentioned

therein. The trial Court erred in coming to the conclusion

that no prejudice would be caused to the revision

petitioners if an advocate commissioner is appointed as

prayed for by the respondent herein. The claim of the

respondent/D.Hr. is not at all maintainable since the prayer

in E.A.No.28 of 2018 is parallel to that of the main E.P.No.23

of 2023. Further, the respondent herein is trying to prove

her case through the Court process by gathering evidence

without adducing substantial evidence in E.P. The trial

Court ought to have held that it is not possible to compare

the earlier commissioner's report with the report to be

submitted by the second advocate commissioner because

there were no measurements in the earlier commissioner's

report. Therefore, he requested the Court to set aside the

impugned order of the trial Court.

4. No doubt, the Court may issue commission only if it

thinks fit to direct such an investigation and to report

thereon. But, in this case, it is an admitted fact that

Commissioner was already appointed in the Original suit

and a report was also filed. Already suit was decreed by the

trial Court on merits and E.P. was filed for execution of the

said decree and as such, there is no requirement to appoint

an advocate commissioner again. However, the trial Court

allowed the application without appreciating the facts

properly. Therefore, this Court is of the view that it is just

and reasonable to set aside the impugned order of the trial

Court.

5. Accordingly, the C.R.P. is allowed by setting aside the

impugned order dated 26.06.2023, passed by the trial Court

in E.A.No.28 of 2018 in E.P.No.23 of 2018 in O.S.No.146 of

2010. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

_______________________ JUSTICE P.SREE SUDHA

02 .11.2023 Gsn