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2021 DIGILAW 2759 (MAD)

P. Ramamoorthy v. S. Meyakkelraj

2021-10-06

A.D.JAGADISH CHANDIRA

body2021
ORDER : 1. The petitioner had filed a O.S.No.147 of 1997, on the file of the Principal District Munsif Court, Karaikudi, praying for a decree of permanent injunction in respect of plaint 'A' Schedule and a decree of mandatory injunction in respect of plaint 'B' Schedule. The suit was partly decreed by the Trial Court, by judgment and decree dated 27.06.2003. The learned Trial Judge decreed the suit in respect of plaint 'A' Schedule. However, the prayer in respect of plaint 'B' Schedule was negatived. 2. Alleging that the respondents have violated the decree of injunction granted by the Trial Court, the petitioner has filed an Execution Petition in E.P.No.141 of 2004 on the file of the Principal District Munsif, Karaikudi. The learned Executing Judge, had appointed an Advocate Commissioner. 3. After perusing the Commissioner Report, the learned Executing Judge had dismissed the application filed by the petitioner stating that the respondents have already put up construction and that the remedy available to the petitioner is only by filing a separate suit for removal of construction. The order dated 13.08.2012, is now assailed in this Civil Revision Petition. 4. The learned counsel for the petitioner would submit that the petitioner had filed E.P.No.141 of 2004 alleging that there was a disobedience, at the instance of respondents. The petitioner contended that he was granted injunction in respect of 4372-1/2 sq.ft. and the respondents are preventing him from enjoying the property. The Executing Court has appointed an Advocate Commissioner and the Advocate Commissioner has also filed his report stating that the petitioner is not permitted to enjoy 4372-1/2 sq.ft. of land, which is shown as 'A' Schedule to the decree dated 27.06.2003. When the Advocate Commissioner has given a specific finding that the petitioner is prevented from enjoying the fruits of the decree, the Executing Court ought to have ordered for removal of construction, since the construction had been done against the decree passed in O.S.No.147 of 1997, whereas, the Executing Court had erroneously held that the petitioner has to file a separate suit for removal of encroachment. 5. The learned counsel for the petitioner would further submit that, when the matter was listed on 30.06.2015, there was no appearance for the respondents. 5. The learned counsel for the petitioner would further submit that, when the matter was listed on 30.06.2015, there was no appearance for the respondents. This Court find that the Executing Court without reference to the Advocate Commissioner's Report had dismissed the EP, remitted the matter back to the Executing Court for fresh consideration based on the Advocate Commissioner's report. Subsequently, the respondent had filed the M.P.No.1 of 2015 to restore CRP (MD)No. 2565 of 2012 stating that no opportunity was given to him and this Court by order dated 29.09.2015 has restored this Civil Revision Petition for fresh consideration and the matter stands posted now. 6. The learned counsel for the petitioner would further submit that the Executing Court committed an error without reference to the report submitted by the Advocate Commissioner. This court by an order dated 30.06.2015 had only set aside the order and remitted the matter back to the concerned Court for fresh consideration after reference to the Advocate Commissioners report. 7. The learned counsel respondent would submit that the respondents have not committed any violation of the order and that they have not violated the decree of injunction granted in O.S.No.149 of 1997. However, he would submit that, he has no objection in the matter being remitted back to the Court and the Trial Court may be directed to pass order afresh after considering the report of the Advocate Commissioner. 8. Heard the learned counsel appearing on either side perused the materials available on record. 9. The learned Executing Judge appears to have decided the matter without reference to the report submitted by the Advocate Commissioner. The Executing Court without properly analyzing the report of the Advocate Commissioner has passed an order stating that in case the respondent has put up a superstructure, the remedy available to the petitioner is only to file a separate suit and the execution petition is not the remedy under the said circumstances. It is to be noted that the petitioner was given a decree in respect of a specified extent of property. The decree has become final. It is the case of the petitioners that the respondents have encroached into a portion of his property and that he is not permitted to enjoy the fruits of the decree. The Advocate Commissioner has already conducted enquiry and submitted the report and plan. The decree has become final. It is the case of the petitioners that the respondents have encroached into a portion of his property and that he is not permitted to enjoy the fruits of the decree. The Advocate Commissioner has already conducted enquiry and submitted the report and plan. The Executing Judge ought to have considered the report submitted by the Advocate Commissioner while deciding the application EP No.141 of 2004, whereas the learned Executing Judge without reference to the Commissioner's Report had straightaway dismissed the E.P. This court is of the view that the matter request fresh consideration by the learned Executing Judge taking into consideration the report of the Advocate Commissioner. 11. In the result, the Civil Revision Petition is allowed and the order dated 13.08.2012, passed in E.P.No.141 of 2004, is set aside. The matter is remitted back and the Execution Petition in E.P.No.141 of 2004 is restored to the file and the Executing Court is directed to consider the matter afresh after taking into consideration the report of the Advocate Commissioner, dated 03.01.2011. However, it is also made clear that if the Court feels that a fresh report has to be obtained at this stage, the Executing Court is at liberty to re-issue warrant to the same Advocate Commissioner to file a report regarding the present status or else it shall pass orders based on the report of the Advocate Commissioner dated 03.01.2011 which is available now. The Trial Court shall independently consider the issue based on the report of the Advocate Commissioner without reference to any observations made by this Court in the Civil Revision Petition. No costs.