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2015 DIGILAW 1573 (MAD)

Arunkumar Veluchamy v. Gurumoorthi

2015-03-23

PUSHPA SATHYANARAYANA

body2015
Judgment :- 1. The appellant is the petitioner in I.A.No.158 of 2009 and appellant is the respondent in I.A.No.89 of 2009 in A.S.No.161 of 2008 on the file of the Sub-Court, Theni. 2. The plaintiffs had filed a suit for permanent injunction restraining the defendant from interfering with the peaceful possession. After contest, the said suit was decreed. Aggrieved by the same, the defendant had filed A.S.No.161 of 2008 on the file of the Sub-Court, Theni. Along with the appeal, an application in I.A.No.158 of 2009 was filed under Order 41 Rule 5 of the Code of Civil Procedure to stay all further proceedings in the suit as already, the plaintiffs had initiated E.P.No.4 of 2009 before the District Munsif Court, Theni. 3. The said application was contested by the respondents on the ground that the very application is not maintainable as the respondents/decree holder had levied execution and filed a petition under Order 21 Rule 32 of the Code of Civil Procedure for disobedience of the decree. Therefore, according to the respondents, an application filed under Order 41 Rule 5 of the Code of Civil Procedure is maintainable only for stay of the operation of the decree and the execution proceedings cannot be stopped. 4. The said application was dismissed by the Sub-Court, holding that the application itself is filed belatedly in the year 2009. The appeal was filed in the year 2008. Aggrieved by the same, C.R.P.NPD (MD)No.1821 of 2010 is filed. 5. The plaintiffs who are the respondents in C.R.P.NPD (MD) No.1822 of 2010 had filed I.A.No.89 of 2009 in A.S.No.161 of 2008 on the file of the Sub-Court, Theni for appointment of Commissioner to note down the physical features and locate the suit property with the help of the Surveyor. 6. According to the respondents herein, the revision petitioner is trying to trespass into the suit properties claiming to be the owner in spite of the decree being passed in favour of the plaintiffs. The petitioner herein, who is the defendant had not surveyed his land at the time of his purchase which is the adjacent property of the plaintiffs. Only when the respondents took steps to survey the disputed land with the help of the Surveyor, the dispute arose and the suit was filed and the same was decreed. The petitioner herein, who is the defendant had not surveyed his land at the time of his purchase which is the adjacent property of the plaintiffs. Only when the respondents took steps to survey the disputed land with the help of the Surveyor, the dispute arose and the suit was filed and the same was decreed. Despite the decree, as the defendant/judgment debtor had been trying to trespass into the property, an application was filed by the plaintiffs to appoint an Advocate Commissioner to note down the physical features and locate the suit property with the help of a Surveyor. 7. Though the said application was resisted by the petitioner herein, the same was allowed by the Sub-Court, Theni by appointing a Commissioner to survey the suit property with the help of the surveyor and submit a report and plan. Aggrieved by the allowing of I.A.No.89 of 2009, the appellant/petitioner has filed the Civil Revision Petition No.1822 of 2010. 8. Now, the question that has to be decided is whether both the Civil Revision Petitions have to be allowed. 9. The suit is filed by the plaintiffs for bare injunction and the same is also decreed and the appeal is filed by the defendant, who had lost in the suit. No doubt, the defendant had filed the stay application with a delay but that does not disentitle the appellant/defendant from obtaining an order of stay of further proceedings. When an appeal suit is automatic, if there is no interim order granted, it would render the decision in an appeal valueless when the appeal is disposed of on merits. 10. At the same time, the decree holder has filed an application for appointment of a Commissioner in a suit for bare injunction. According to the plaintiffs, there is a boundary dispute and the documents which are available being the interested testimony of the parties alone will not resolve. Though it may be a suit for injunction, since the dispute relates to the boundary, the learned counsel for the respondent contended that the appointment of the Commissioner was correct. The local investigation by the Commissioner would only facilitate the Court to decide the issue more effectively even though the suit is one for permanent injunction. Though the contention of the respondents is convincing, the same cannot be done till the disposal of the first appeal. The local investigation by the Commissioner would only facilitate the Court to decide the issue more effectively even though the suit is one for permanent injunction. Though the contention of the respondents is convincing, the same cannot be done till the disposal of the first appeal. The learned counsel for the respondents also furnished the copy of the report and the plan submitted by the Commissioner. 11. Be that as it may. When the decree itself is under challenge in the first appeal, without the appeal being disposed of on merits, the execution cannot be proceeded with. Therefore, this Court is inclined to grant stay of all further proceedings in O.S.No.25 of 2008 pending disposal of the appeal. 12. In view of the stay granted, the appointment of the Commissioner and the report and plan filed by him also though may be treated as part of the records, it cannot be proceeded with further. It is made clear that the appointment of Commissioner is not set aside and the same has to be kept in abeyance till the disposal of the first appeal. 13. In the result, (i) C.R.P.NPD (MD) No.1821 of 2010 is allowed setting aside the order passed in I.A.No.158 of 2009 in A.S.No.161 of 2008 dated 21/6/2010 on the file of the Sub-Court, Theni. No costs. (ii) C.R.P.NPD (MD) No.1822 of 2010 is disposed of directing the Sub-Court, Theni to dispose of the appeal on or before 30/6/2015. Till such time, there shall be a stay of further proceedings in the suit till the disposal of the appeal. No costs.