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2013 DIGILAW 2915 (MAD)

N. R. Vasudevan v. A. Vadivammal

2013-08-13

K.RAVICHANDRA BAABU

body2013
Judgment : 1. This Civil Revision petition is filed by the petitioner/decree holder against the order passed by the Executing Court in dismissing his execution petition filed in E.P.No.3965 of 2007 on the ground that the judgment debtor has removed the encroachment after the decree and therefore full satisfaction has to be recorded. 2. Heard the learned counsel appearing on either side. 3. The petitioner herein as plaintiff filed the suit in O.S.No.3264 of 2003 on the file of the City Civil Court, Chennai, seeking for mandatory injunction to remove the staircase in the suit property and for permanent injunction restraining the defendants from interfering with his right to put up a compound wall in the schedule mentioned property. 4. The trial Court decreed the suit on 15.11.2005 whereby the defendants were directed to remove the stair case put up in the suit property and also injuncted from interfering with the plaintiff's right to put up a compound wall in the suit property. The said decree was put in execution by the decree holder in E.P.No.3965 of 2007. The Executing Court appointed an Advocate Commissioner and also, subsequently, sought assistance from the Slum Clearance Board Surveyor to identify the property as well as the encroachment alleged by the petitioner. The Advocate Commissioner filed three reports along with the report given by the licensed surveyor. The Court below found that as per the sketch and report of the Tamil Nadu Slum Clearance Board, an extent of 2.2 metre is in possession of the decree holder and no encroachment was reported in this area by the head surveyor. It was also found by the Court below that the Advocate Commissioner's report under Ex.C1 also stated that except the measurement and the occupation of the property as per the report given by the head surveyor, the other contention of the property is to be referred to his earlier report. Thus, by finding that 2.2 metre is in occupation of the decree holder, the Court below has accepted the contention of the judgment debtor that he has already removed protrusion and encroachment in the suit property and therefore, there is no encroachment which is to be removed as per the decree. Thus, by finding that 2.2 metre is in occupation of the decree holder, the Court below has accepted the contention of the judgment debtor that he has already removed protrusion and encroachment in the suit property and therefore, there is no encroachment which is to be removed as per the decree. Thus, by recording the statement made by the judgment debtor and also by considering the reports of the Advocate Commissioner as well as the Slum Clearance Board Surveyor, the Court below has found that there was no encroachment at present in the E.P. schedule property as alleged by the decree holder since the judgment debtor had removed the encroachment after the decree. Accordingly, full satisfaction has been recorded by the Executing Court and consequently, the Execution Petition also came to be dismissed. 5. Perusal of the order passed by the Court below would show that before passing the said order, it had taken the assistance of the Advocate Commissioner who filed three reports and also the assistance of the Surveyor from the Slum Clearance Board who after verification of the records containing allotment details to the parties herein filed report wherein and whereby the Court below has come to the conclusion that there is no encroachment as contended by the decree holder and on the other hand, the judgment debtor has already removed the protruded portion in the suit property. I find that the factual finding rendered by the Court below after elaborate exercise of appointment of Advocate Commissioner and getting their reports does not warrant any interference by this Court. 6. Considering the above said facts and circumstances and also considering the fact that the judgment debtor has already removed the alleged encroachment which has been recorded by the Court, the dismissal of the Execution Petition by the Court below is perfectly in order. Consequently, I find no merits in the Civil Revision Petition and the same is dismissed. The connected Miscellaneous Petition is closed. No costs.