The petitioner/first defendant has filed this civil revision petition as against the order dated 09.1.2009 in E.A.No.343 of 2008 in E.P.No.166 of 2004 in O.S.No.164 of 1988 passed by the learned Principal District Munsif, Gingee in dismissing the application filed by the revision petitioner under Order 26 Rule 9 read with 151 of Civil Procedure Code praying for an appointment of an Advocate Commissioner with the assistance of Surveyor and to submit his report along with plan.
2.The Executing Court, while passing orders in E.A.No.343 of 2008 dated 09.01.2009, has inter alia opined that there is no necessity to find out as to whether the suit property is situated in suit survey number and that too in the possession and enjoyment of the petitioner and resultantly, dismissed the application without costs.
3.The learned counsel for the revision petitioner/first defendant contends that the filing of an application praying for an appointment of an Advocate Commissioner with the assistance of Surveyor is to elucidate the Executing Court to resolve the dispute in a facile manner and that the Executing Court has dismissed the E.A.No.343 of 2008 praying for an appointment of an Advocate Commissioner with the assistance of the Surveyor without properly appreciating the merits of the case in right earnest, which in turn has resulted in miscarriage of justice and therefore, prays for allowing the civil revision petition.
4.It is to be noted that admittedly the respondent/ decree holder has obtained a decree in O.S.No.164 of 1988 on 17.03.1998 before the trial Court. The said suit has been filed by the respondent/decree holder for declaration and permanent injunction. The said judgment and decree passed in O.S.No.164 of 1988 on the file of the Principal District Munsif, Gingee have become final, conclusive and binding between the parties interse. In fact, an Executing Court in law cannot go behind the tenor of the decree. The E.P.No.166 of 2004 has been filed by the respondent/decree holder praying for arrest of the revision petitioner/first defendant and the same is admittedly pending before the Executing Court for adjudication. It is an axiomatic fact that a Commissioner cannot be appointed to make a roving enquiry or to indulge in a fishing expedition. As a matter of fact, a Court of Law has to be circumspect and act with great care and caution while dealing with an application praying for appointment of a Commissioner and that too at the execution stage when the petitioner/first defendant has an effective and efficacious opportunity before the Executing Court in execution petition to hear and agitate his point of view then projecting the application praying for an appointment of an Advocate Commissioner in execution application can at best only be described as a luxury and not a case of necessity and in fact, it is only a surplusage besides being redundant and in that view of the matter, the Civil Revision petition fails.
5.In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order dated 09.01.2009 in E.A.No.343 of 2008 in E.P.No.166 of 2004 in O.S.No.164 of 1988 passed by the learned Principal District Munsif, Gingee is confirmed for the reasons assigned by this Court in this revision. Considering the facts and circumstances of the case, there shall be no order as to costs.
sgl To The Principal District Munsif, Gingee