The petitioners/respondents/judgment debtors have filed this civil revision petition as against the order dated 28.08.2003 passed in E.A.No.246 of 2003 in E.P.No.87 of 2003 in O.S. No.401 of 1981 by the Learned District Munsif Tiruvarur.
2. The trial Court, while passing orders in E.A.No.246 of 2003 in E.P.No.87 of 2003 dated 28.08.2003, has interalia opined that the application filed by the revision petitioner/judgment debtors/petitioners praying for the appointment of an Advocate Commissioner to inspect the property mentioned in the decree along with a surveyor in order to measure and fix the boundary and to identify the portion to be demolished is not to be allowed and resultantly, dismissed the said application without costs.
3. In the memorandum of grounds filed by the revision petitioners/petitioners/judgment debtors it is mentioned that the Executing Court has committed an error in dismissing the application E.A.No.246 of 2003 praying for appointment of an Advocate Commissioner with the help of surveyor is erroneous in law and the same is vitiated by material irregularities and further, the appointment of an Advocate Commissioner application has been filed only to demarcate, determine and measure the portion and to make out the boundary line which have to be demolished as set out in the decree passed in the main suit O.S.No.401 of 1981 and moreover, the Executing Court has not appreciated the real fact that an application for the appointment of an Advocate Commissioner has only been filed to facilitate the execution of the decree, and infact, there has been a discrepancy in measurement of actual portion of the encroachment and indeed, the appointment of an Advocate Commissioner with the help of surveyor will enable the Court to come to a proper conclusion and these aspects of the matter have not been adverted to by the trial Court in a proper perspective which has resulted in miscarriage of justice and therefore prays for allowing the Civil Revision Petition in the interest of justice.
4. Before the Executing Court, the revision petitioners/petitioners/ judgment debtors have filed execution application E.A.No.246 of 2003 wherein it is among other things averred that the deceased plaintiff S.M. Bashir Hussain has filed the suit against them praying for the relief of mandatory injunction and for recovery of possession and the trial Court has decreed the suit against the petitioners but in the first appeal A.S.No.29 of 1989 on the file of Sub-Court Nagapattanam has ended in their favour and however, the deceased plaintiff in Second Appeal No.66 of 1991 on the file of this Court has succeeded and therefore the judgment of the trial Court has been confirmed and when the matter has been pending before this Court, in order to find out namely the built up wall in T.S.No.2890 (to what extent has been encroached upon) has to be found out by means of appointment of an Advocate Commissioner with the help of a surveyor and this has to be measured and demarcated and since the encroachment/construction has been made in their property in T.S.No.2891 Court Amin has to be appointed with the help of Village Administration Officer in order to find out the extent of encroachment and therefore an Advocate Commissioner needs to be appointed and resultantly the application has to be allowed.
5. In the counter filed by the Second Respondent and adopted by Respondent Nos.3 to 6 it is among other things mentioned that during the pendency of the suit the suit property described in the Execution Petition 87 of 2003 dated 28.08.2003 was measured two times and the matter was taken to the High Court and the trial Court's decree for mandatory injunction has been confirmed and that the petitioners are bound to remove the encroachments and the since they have not complied with the decree an Execution Petition has been filed by the respondents and in short, the revision petitioners cannot undo what has already been done and there is nothing that an Advocate Commissioner or a Surveyor can do at this stage and therefore, prays for the dismissal of the application with costs.
6. It is true that a Court of Law is empowered to appoint an Advocate Commissioner for local inspection so as to enable the Court to appreciate the evidence already on record in a better manner. In fact, the power to appoint an Advocate Commissioner for local inspection is a discretionary one. An important aspect that is to be taken note by the Court of Law is that it is not the object of Order 26, Rule 9 of the Civil Procedure Code, to assist a party to collect evidence, where the party can get the evidence itself. The object of local inspection is not to collect evidence which can be taken in the Court but to obtain such material, which from its peculiar circumstances, can be had only at the spot. It is not necessary that either or both the parties must apply for issue of commission. The Court can exercise its power suo motu. Indeed, the appointment of an Advocate Commissioner is within the domain and discretionary power of a Court of Law for elucidating any matter in dispute/controversy.
7. As far as the present case is concerned, it is not in dispute that the revision petitioners/judgment debtors have not succeeded before the trial Court in the suit, but in the appeal A.S.No.29 of 1989, the petitioners have succeeded. But before this Court in S.A.No.66/1991 the judgment and decree of the First Appellate Court have been set aside and therefore, in effect the judgment and decree of the trial Court have been affirmed by this Court. The said Second Appeal No.66 of 1991 have become final and an Executing Court cannot go behind the tenor of decree in the considered opinion of this Court. Moreover, the fruits of the decree will have to be enjoyed by the decree holder or his legal heirs. Added further, it is brought to the notice of this Court that when the suit has been pending before the trial Court before passing of the decree the property described in Execution Petition No.87 of 2003 has been measured twice by the Advocate Commissioner with the help of a surveyor and therefore the endeavor of the revision petitioners in projecting E.A.No.246 of 2003 praying for an appointment of an Advocate Commissioner etc., is only a futile and otiose attempt and as a matter of fact in the present case on hand, based on the facts and circumstances of the case nothing can be done at the stage of Execution and the revision petitioners cannot upset the apple cart, and indeed the prayer for appointment of an Advocate Commissioner etc., is only a luxury and not a case of necessity and in this view this Court comes to the conclusion that this civil revision petition is devoid of merits and resultantly the same is dismissed.
8. In the result the Civil Revision Petition is dismissed leaving the parties to bear their own costs. The order passed by the Executing Court in E.A.No.246 of 2003 in E.P.No.87 of 2003 in O.S.No.401 of 1981 is affirmed by this Court for the reasons ascribed in this revision. Considering the facts and circumstances of the case the parties are directed to bear their own costs in this revision. Consequently, related C.M.P. No.15522 of 2003 is closed.
19.10.2009 Index: Yes/No Internet:Yes/No prm To The District Munsif Court Tiruvarur., M.VENUGOPAL, J.
prm C.R.P (N.P.D) No.1414 of 2003 And C.M.P. No.15522 of 2003 19.10.2009