THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NO.1008 OF 2009 O R D E R Heard both the counsel. 2. Aggrieved by the order and decree dated 13.2.2009 passed by the court of X Junior Civil Judge, City Civil Court, Hyderabad in E.A.No.20/2009 in E.A.No.21/2007 in E.P.No.170/2003 in appointing an Advocate Commissioner in a petition filed by the respondent – judgment-debtor no.6, the present revision is filed by the decree holder –plaintiff. 3. For the sake of convenience, the parties will be referred to as plaintiff and defendant no.6. 4. From the material available on record, it could be seen that the case of the plaintiff is that she is the owner and possessor of house bearing municipal no.1-2-288/9 and 1-2-288/22/9/1 to 5, admeasuring 404 sq. yards at Indira Park Road, Domalguda, Hyderabad. On the ground that the defendants are interfering with her possession and enjoyment, she filed suit in O.S.No.1878 of 1979 on the file of X Junior Civil Judge, City Civil Court, Hyderbad for perpetual injunction and the present respondent is defendant no.6 in the said suit. The suit was decreed on 10.9.1982. Alleging that the defendant no.6 is interfering with her peaceful possession and the construction work undertaken by her and that, this amounts to violation of the perpetual injunction decree granted by the court, she filed E.P.No.170/2003 in O.S.No.1878 of 1979 under Order 21, Rule 32, seeking detention of the 6th defendant - judgment-debtor in civil prison. The plaintiff also filed E.A.No.368 of 2003 seeking police protection and by order dated 8.8.2003 the said application was allowed. However, by order dated 14.6.2006, the petition filed under Order 21, Rule 32, of C.P.C. seeking dentition of the defendant no.6, in civil prison, was also allowed. Challenging the same, the 6th defendant – judgment debtor, filed a revision before this court in C.R.P.No.3729 of 2004. By order dated 5.12.2006, the impugned order was set aside and this court remitted the matter back to the court below to conduct necessary enquiry by giving an opportunity to lead evidence and decide the matter with reference to the violation of the order, as well as other issues related. Subsequently, the plaintiff had withdrawn E.P.No.170/2003 in O.S.No.1878 of 1979. 5. The case of the respondent – defendant no.6 is that he is the owner and possessor of the property bearing no.1-2-234/13/64, admeasuring 222 sq. yards, forming part of Sy.No.97, situate at Arvindnagar Colony, Musheerabad Mandal, Hyderabad, having obtained the same from his father under a registered gifted deed bearing document no.2403/91 dated 23.9.1991 and after obtaining permission from the municipality under permit no.287/GST/92 in file No.234/13/64/2/1/92 dated 17.89.1992, he constructed the compound wall and thereafter, he constructed asbestos sheet rooms and mulgees and leased them to the tenants and they were running scooter mechanic shop and battery shop after obtaining licence from the Municipal Corporation. As the constructions were temporary, he again obtained permission from the municipality under permit no.234/2/1/2003 dated 19.5.2003 and started constructing the house. 6. The further case of the respondent – defendant no.6 is that the petitioner – plaintiff is the owner of the house bearing municipal no. 1-2- 288/22/9 in Sy.No.55 admeasuring 400 sq. yards situate at Indira Park Road Domalguda, Hyderabad. The claim of the defendant no.6 is that his property and the property of the petitioner – plaintiff, though altogether are different, are adjacent to each other. The plaintiff filed the suit as noted above, and now the grievance of defendant no.6 is that the plaintiff under the guise of police protection granted by the court below in E.A.No.368/2003 dated 8.8.2003, with the help of anti social elements and by managing the local police, has illegally and unlawfully dispossessed him from the premises bearing no.1-2-234/13/64, admeasuring 222 sq. yards, forming part of Sy.No.97, situate at Arvindnagar Colony, Musheerabad Mandal, Hyderabad. Therefore, seeking restoration of his possession, he filed E.A.No.357/2008 under Section 144 of C.P.C. and the same is pending adjudication. In these proceedings, the petitioner earlier filed E.A.No.21/2007 seeking appointment of an Advocate Commissioner and by order dated 17.8.2007 the said petition was dismissed on the ground that the parties are at liberty to let in evidence in support of their respective contentions and the Commissioner cannot be appointed to gather evidence. Challenging the same, he filed a revision petition before this court in C.R.P.No.4483 of 2007 and the same is pending adjudication. Now, after completion of evidence, the petitioner again filed the application in E.A.No.20 of 2009 seeking appointment of Advocate Commissioner for measuring both the premises, since under the guise of police protection order dated 8.8.2003, the petitioner – plaintiff has grabbed his property and now she is in possession of 626 sq. yards and whereas her claim in the suit is only over 403 sq. yards. 7. The case of the petitioner – plaintiff while denying the grabbing of the property of the respondent under the garb of police protection, contended that since the earlier petition seeking appointment of an Advocate Commissioner was rejected, the present petition, for the very same relief, is not maintainable. It is further stated that the petitioner is not at all the owner and possessor of the said property. The father of the petitioner is not holding any property in the vicinity and hence executing of gift deed over an extent of 222 sq. yards in favour of the respondent – defendant no.6 does not arise. The defendant no.6 is holding only 29 sq. yards of land and made construction over the said land and the municipal corporation assigned municipal no. 1-2-234/13/64 and the same is evident from a partition deed dated 22.11.1990 vide document no. 2592/1990 between the defendant no.6 and the Arvind Nagar Co-operative Housing Society Ltd. The further case of the petitioner– plaintiff is that the houses are not adjacent to each other and there is a 10’ public lane between the properties and the said house of the petitioner bearing no.1-2-234/13/64 is towards the eastern side of his house and is separated by a 10’ public lane. It is further stated that as a counter blast to the suit filed by the plaintiff in O.S.No.1878/1979, the father of the petitioner filed another suit in O.S.No.2056/1979 for perpetual injunction and the same was dismissed. Later, when the petitioner - plaintiff was undertaking construction work, the respondent filed another suit in O.S.No.3747/2003 on the file of the same court and it was dismissed on 6.10.2004 and hence, he failed to prove title and possession over the alleged 222 sq. yards of land bearing municipal no.1-2-234/13/64. The contention of the petitioner – plaintiff is that no E.P. proceedings are pending and the executing court cannot be go beyond the decree and only in a case where there is wrongful delivery of possession pursuant to a order of a court, then only restoration proceedings under Section 144 of C.P.C. are maintainable. It is contended that in view of the above circumstances, the appointment of Advocate Commissioner would amount to collection of evidence and the same is not permissible under law. With these averments, inter alia, the petition was sought to be dismissed. 8. By the impugned order, the court below holding that restoration proceedings are pending and in order to arrive at a just decision for disposal of EA. it is necessary to appoint an Advocate Commissioner and further no prejudice would be caused to the petitioner – plaintiff, allowed the petition and appointed an Advocate Commissioner. Challenging the same present revision is filed. 9. The learned counsel appearing for the petitioner – plaintiff vehemently contended that the restoration application filed by the defendant no.6 is not at all maintainable, since the E.P. proceedings are terminated and the proceedings under Section 144 of C.P.C. are maintainable only when there is an order of delivery of possession and as in the present case, there is no delivery of possession and the E.P proceedings are closed, the restoration proceedings under Section 144 are not at all maintainable. He contended that the executing court cannot go beyond the decree and as the E.P proceedings are terminated, the appointment of Advocate Commissioner with regard to the terminated proceedings in E.P., is not at all sustainable. He contended that the earlier petition filed appointment of Advocate Commissioner was dismissed and hence for the very same purpose, second application is not maintainable. He further contended that the earlier suit filed by the respondent – defendant no.6 in O.S.No.3747/2003 for perpetual injunction claiming part of the suit property was dismissed and hence he is a stranger to the property and, therefore, he cannot claim possession over the said property and in these circumstances, dispossessing him under the orders of police protection obtained by the petitioner – plaintiff, does not arise and the present petition seeking appointment of Advocate Commissioner is only to gather evidence, which is not permissible under law. He contended that even assuming for the sake of argument that the petitioner is in possession of more extent of land than claimed in O.S.No.1878/1979, the respondent – defendant no.6, has no locus standi to question the same, as he is stranger to the property and he had already suffered decrees. With these averments, he sought to set aside the impugned order and allow the revision. 10. On the other hand, the learned counsel appearing for the respondent – defendant no.6 contended that even if the execution proceedings are closed, since the respondent was disposed fraudulently by the petitioner under the garb of a police protection order granted by the court, the court has inherent powers even under Section 151 of C.P.C. to restore possession, if it is found that the respondent was dispossessed illegally and unlawfully. In support of this contention, he relied on the judgment of the Apex Court reported in MRS.. KAVITA TREHAN AND ANOTHER vs. BALSARA HYGIENE PRODUCTS LTD., RESPNDENT[1]. He further contended that the claim of the petitioner, who is the plaintiff in the suit in O.S.No.1878 of 1979 is about 400 sq. yards and now as per the submissions of the counsel for the petitioner, she is in possession of more extent and this, he has grabbed from the respondent who is in possession of the said extent under the garb of police protection order and hence by appointment of an Advocate Commissioner, the court will be able to adjudicate the matter in an effective manner, to find out the extent of encroachment made by the petitioner. He submitted that there is serious dispute with regard to identity of the property, since as per the case of the petitioner, the property of the petitioner and that of the respondent are separated by a 10’ lane and as per the case of the respondent, they are adjacent to each other. Therefore as there is dispute with regard to identity and also extent, it is just and proper to appointment an Advocate Commissioner. He further contended that proceedings for appointment of an Advocate Commissioner under Order 26 Rule 9 of C.P.C. are applicable even to execution proceedings. In support of his contention that appointment of an Advocate Commissioner would resolve the issue and that the Commissioner can be appointed even in execution proceedings, he relied on the judgments of the learned single Judges of this court reported in MALLIKARJUNA SRINIVASA GUPTA v. K.SHESHIREKHA[2] and CHAKKA RANGA RAO v. MOLLA MUSTARI BANU[3]. He also relied on the judgment of the Apex Court reported in SHREEPAT v. RAJENDRA PRASAD & ORS.[4]. With regard to the contention that since the earlier petition seeking for appointment of an Advocate Commissioner was dismissed, the present petition is not maintainable and is hit by the principles of res judicata, he contended that the earlier proceedings were dismissed on the ground that the parties are at liberty to lead evidence in support of their contention and challenging the same, revision in C.R.P.No.4483/2007 is filed and the same is pending before this court and now the evidence in E.A.No.357/2008 is adduced and for resolving the issue, since there is serious dispute with regard to identity and extent, the present petition is perfectly maintainable and same is not hit by the principles of res judicat. In support of his contention, apart from relying on the above judgment of the learned single judges, he relied on the judgment of the Karnataka High Court in LAKSHIDEVAMMA v. K.CHINNA REDDY[5]. He contend that the court below rightly considering all these aspects, allowed the petition and appointed an Advocate Commissioner, since no prejudice would be caused to the petitioner – plaintiff and, therefore, sought for dismissal of the revision. 11. In view of the above rival contentions, the point that arises for my consider is whether the court below is justified in appointing an Advocate Commissioner? 12. Though both the counsel raised contentions with regard to the maintainability of the restoration proceedings under Section 144 of C.P.C., since the E.A.No.357 of 2008 is filed and both the parties have let in evidence and the matter is pending adjudication, this court is not inclined to decide the said controversy and as the revision is filed only questioning the appointment of an Advocate Commissioner, this court is confined to resolve the said issue in this revision. 13. The other contention of the counsel for the petitioner is that the second petition for appointment of an Advocate Commissioner is not maintainable. In the present case, the petitioner earlier filed E.A.No.21/2007 seeking appointment of an Advocate Commissioner and the same was dismissed by order dated 17.8.2007 and challenging the same, the respondent filed C.R.P.No.4483/2007 and the same is pending. It is to be noticed that the said application was filed even before leading evidence and, therefore the court below held that parties are at liberty to let in evidence in support of their respective contentions and no Commissioner can be appointed for gathering evidence. It is to be further noticed that, the present situation is that the evidence of both the parties is recorded and as there is serious dispute with regard to extent and identity, and in order to resolve the allegation that the petitioner – plaintiff under the garb of police protection, has encroached the land of the respondent, the present petition is filed and in view of these circumstances, the second petition cannot be said to be not maintainable and the court below rightly considering these aspects allowed the petition and I do not find any reason to interfere with the same. Moreover the proceedings are interlocutory and hence the principles of res judicata are not applicable. The Apex Court in U.P.E. SUPPLY CO. v. T.N. CHATTERJEE[6] held that: “The principles of res judicata is not applicable to interlocutory orders, as they are not final orders.” 14. The claim of the petitioner in O.S.No.1878/1979 is that he is the owner and possessor of the property over an extent of 404 sq. yards of land over which she made construction of a house bearing no.1-2-288/22/9 and 1- 2-288/22/9/1 to 5, Indra Park Road, Domalguda, Hyderabad and the suit was decreed for perpetual injunction. The claim of the respondent is that he is the owner and possessor over an extent of 222 sq. yards in survey no. 97and after obtaining permission from the municipality he constructed house for which the municipality has given number. However, the ground that the respondent suffered decree and failed to prove his possession in the earlier suit, will have to be decided in the main E.A. and no opinion can be expressed at this stage. But now the grievance of the respondent is that under the garb of police protection order, the petitioner has grabbed his property. On the other hand, the claim of the petitioner is that the petitioner is having only an extent of 29 yards by virtue of a partition deed dated 22.11.1990 between him and the Arvind Nagar Cooperative Housing Society, Ltd. and over the said land he made construction and the municipal corporation assigned municipal no. 1-2-234/13/64 and he has no title or possession over the 222 sq. yards as claimed by him and he also suffered a decree in O.S.No.3747/2003. From this it is clear that the petitioner has admitted possession over an extent of 29 sq. yards and the remaining is disputed. However, his claim is over an extent of 404 sq. yards in the suit filed by her. Now as per the submissions of both the counsel, the petitioner is in occupation of the land in excess of the said extent. Further it is to be noticed that as per the claim of the petitioner, her property and the property of the respondent are separated by a 10’ lane and whereas as per the case of the respondent, they are adjacent to each other. Therefore, it is clear that there is serious dispute with regard to the identity of the property. The grievance of the respondent is that under the garb of police protection, his property has been grabbed. It is further to be noticed that the petitioner earlier filed E.P.No.170/2003 for punishing the respondent for violation of the injunction granted by the court in the year 1982 and when the same was allowed, the respondent filed revision before this court in C.R.P.No.3729/2004 and by order dated 5.12.2006 this court set aside the said order and disposed of the revision. The operative portion of the order reads as under: “Under the above circumstances, without going into the merits of the matter, since the matter requires proper enquiry before recording the categorical findings, the impugned order passed by the Executing Court without such enquiry is clearly unsustainable. Therefore, the impugned order is set aside and the matter is restored to the file of the Executing Court, with a direction to conduct necessary enquiry by giving an opportunity to lead evidence and decide the matter with reference to the violation of the order, as well as other issues related.” 15. Subsequently, it appears that the E.P.No.170/2003 was withdrawn and the proceedings filed by the respondent under E.A.No.357/2008 for restoration was entertained and the matter is pending enquiry. In these circumstances, as there is serious dispute with regard to the identity and extent of the property, I am of the view that it is just and proper to appoint an Advocate Commissioner, as ordered in the impugned order. 16. The Apex Court in the decision reported in SHREEPAT v .RAJENDRA PRASAD & ORS. (4 supra) considering the issue where there is serious dispute with regard to identity of the property held as under: “4. In our opinion this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No.257/3 or Khasra 257/1. This having not been done has resulted in serious miscarriage of justice. We consequently allow the appeal, set aside the order passed by the courts below as affirmed by the High Court and remand the case to the trial court to dispose of the suit afresh in the light of the observations made above and in accordance with law.” 17. For the foregoing reasons, I do not find any merit in the revision and the same is dismissed. No costs. 18. It is made clear that the court below shall dispose of the E.A.No.357/2008 on its merits based on the evidence available on record and in accordance with law, without being influenced by any of the observation in this order. AVS -------------------------- 21 --08—2009 [1] AIR 1995 SC 441 [2] 2006(4) ALT 162 [3] 2006(5) ALT 220 [4] JT 2000(7) SC 379 [5] 2001 AIHC 4610 [6] AIR 1972 SC 1201