A. Mohamed Usane, rep. By Power Agent, Chandragupthan v. K. Thillaivinayagam
2013-06-18
K.RAVICHANDRA BAABU
body2013
DigiLaw.ai
JUDGMENT 1. This civil revision petition is filed against the order made in unnumbered E.A.No. of 2011 in E.A.No.186 of 2011 in E.P.No.46 of 2011 in R.C.O.P.No.9 of 2001 on the file of the District Munsif Court, Tiruvarur wherein and whereby the application filed by the petitioner seeking for appointment of Advocate Commissioner to inspect the petition mentioned property and measure the same with the help of Town Surveyor on the basis of revenue records, was dismissed. 2. Heard the learned counsel appearing for the petitioner as well as the respondent. 3. The petitioner herein as the tenant suffered an order of eviction which has been confirmed by this Court in an order passed in the revision. This fact is not disputed by the petitioner. However, it is his contention that there is a discrepancy in the boundaries of the petition mentioned property and therefore, he has filed an application under section 47 of C.P.C. in the execution proceedings. Pending such application, he has filed the present unnumbered application seeking for appointment of an Advocate Commissioner to inspect the property and to file a report, as stated supra. 4. The court below rejected the said application by observing that the description of the property given in the R.C.O.P. and the E.P. proceedings are one and the same and when that being the factual position, the present application filed by the petitioner is intended only for dragging the proceedings. By observing so, the Court below has rejected the said petition. 5. The learned counsel appearing for the petitioner submitted that the order passed by the court below is not maintainable in view of the fact that even before numbering the E.A., such order is passed, which is not in accordance with the procedure. 6. First of all, the petitioner has to establish as to how such application is maintainable before the court below when admittedly he has lost before all the forums upto this Court in the eviction proceedings. It is a fact that the description of the property given in the R.C.O.P. and the description of the property given in the E.P. are one and the same. Therefore, based on the decree passed in the R.C.O.P. proceedings, the execution proceedings came to be filed seeking for execution of the order of eviction passed against the petitioner.
It is a fact that the description of the property given in the R.C.O.P. and the description of the property given in the E.P. are one and the same. Therefore, based on the decree passed in the R.C.O.P. proceedings, the execution proceedings came to be filed seeking for execution of the order of eviction passed against the petitioner. It is not the case of the petitioner that he had made any attempt to raise such objection during the pendency of R.C.O.P. or R.C.A or C.R.P with regard to the alleged description of the boundaries. When it is clearly found by the court below that there was no discrepancy in the boundaries of the property, the court below is justified in rejecting the application by holding that the proceedings which are initiated by the petitioner herein before the Execution Court is nothing but to drag on the process of eviction one way or other. I find no irregularity or infirmity in the order passed by the court below. 5. Learned counsel appearing for the respondent submitted that if at all the petitioner is having any grievance against the order passed in the eviction proceedings, his only remedy is to file an appeal before the Apex Court as against the order passed by this Court in the revision and without doing so, the present applications filed are not maintainable, which are being done only to protract the proceedings. In support of his contention, the learned counsel relied on the decision reported in 2011 (3)CTC 507 , K.Lakshmi vs. S.K.Sridhar and also (2009) 5 Supreme Court Cases 634, Century Textiles Industries Limited vs. Deepak Jain And Another, to contend that the execution court cannot go beyond the decree and the petitioner's right of remedy could be only by way of further appeal before the Apex Court. 6. As I already pointed out that the present application filed by the petitioner has got no merits and the same was filed to drag on the proceedings, I find that the order passed by the court below in rejecting such application is just and proper with which, I find no grounds to interfere in this revision. Accordingly, the civil revision petition is dismissed. No costs. The connected miscellaneous petition is also dismissed.