IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.07.2009 CORAM: THE HONOURABLE MR. JUSTICE M. VENUGOPAL C.R.P.(N.P.D) No.2446 of 2008 And M.P. No. 1 of 2008 Abdul Jabar .... Petitioner/Plaintiff Vs. Mani .... Respondent/Defendant PRAYER: This Civil Revision Petition is filed under Article 227 of Constitution of India, against the order and decreetal order or District Munsif cum Judicial Magistrate Court, Nannilam dated 11.04.2008 made in E.A.17 of 2008 in E.P.19 of 2007 in O.S.No.52 of 1990. For Petitioner : Mr. S.Sounthar For Respondent : No Appearance O R D E R The Civil Revision Petitioner/petitioner/plaintiff has projected this civil revision petition as against the order dated 11.04.2008 in E.A.17 of 2008 in E.P.19 of 2007 in O.S.No.52 of 1990 passed by the District Munsif cum Judicial Magistrate Court, Nannilam in dismissing the application filed by the revision petitioner under Order 26 Rule 9 of the Civil Procedure Code. 2. The trial court, while passing orders in E.A.17 of 2008 on 11.04.2008, has observed that "in the suit the Advocate Commissioner has been appointed and the property is identified and as an executing Court this Court has to execute the decree as per the terms in the decree and also a rough sketch is attached to the decree and hence no necessity is warranted for the identification of the property, if any construction has been done subsequent to the decree that also be removed through process of law in the main execution petition" and resultantly dismissed the application without costs. https://hcservices.ecourts.gov.in/hcservices/ 3. According to the learned counsel for the revision petitioner, the trial court has committed an error in dismissing the application for appointment of an Advocate Commissioner and it has failed to exercise its jurisdiction in a proper manner vested in law and as a matter of fact the decree itself is for injunction and violating the terms of decree has put up of new constructions and has made alteration in the suit property and in as much as the execution petition is for removal of new constructions and committing the respondent in Civil Prison, the appointment of Advocate Commissioner is an essential one and these facts have not been looked into by the executing court in proper perspective and therefore prays for allowing the application to prevent an aberration of justice. 4. This Court has heard the learned counsel for the revision petitioner and noticed his contentions. 5. Notice has been served to the respondent in this Civil Revision Petition as early as on 08.08.2008 and today there is no appearance on behalf of the respondent side in person or through counsel. 6. In support of the contention that the application for appointment of Advocate Commissioner is a case of necessity in as much as the respondent/defendant has made an encroachment and alteration in the suit property, the learned counsel for the revision petitioner relies on the decision of this court in Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam 98 LW 112 where in its observed that "A local investigation is the best way to find out the position and the party, namely, the third defendant coveting to place the evidence before the court through local investigation by the Commissioner cannot be shut out of that right. Shutting out the evidence which a party is entitled to place before Court to substantiate his case, definitely decides that right of the party adversely against him and in this view, the order passed by the Court below is a 'case decided' and apart from that on merits the order passed by the Court below comes within the mischief of the ratio adumbrated in S.115 of the Code. In this case there has been a failure to exercise jurisdiction vested in it by the Court below to a parent misconception of the position and this obliges the Court to interfere in revision." https://hcservices.ecourts.gov.in/hcservices/ 7. Admittedly, the decree in the main suit is one for injunction. It appears that earlier in the suit O.S. No. 52 of 1990 an Advocate Commissioner has been appointed and has submitted the report along with the plan. Now the revision petitioner has come out with a specific case that the respondent/defendant has made an encroachment in the suit property. Subsequent to the decree made in O.S. 52 of 1990 dated 31.10.1990 by putting directions including the cowshed and fertilizer pit. The executing court cannot go behind the tenor of decree. After passing of the decree if any encroachment is made or alteration is made by respondent/defendant then the same is to be proved or disproved by parties leading oral and documentary evidence. There is no embargo in law for removing the encroachment or the alteration alleged to have been made by the respondent in the suit property and the same can be looked into by the executing court while disposing of the execution petition finally once and for all setting at rest the controversy involved in a complete and comprehensive manner, thereby giving a quietus. In as much as the revision petitioner is entitled to prove his case of alleged encroachment or the alteration made in the suit property by the respondent at the time of deciding the main execution petition and as such is not entitled in law to project an application for appointment of an Advocate Commissioner (to collect evidence which can be taken in court) in a premature fashion in the considered opinion of this court and therefore the order passed by the trial court in dismissing the application is proper and valid one and resultantly this civil revision petition fails. 8. In fine the Civil Revision Petition is dismissed leaving the parties to bear their own costs. However, liberty is given to the revision petitioner to file a proper application for appointment of Advocate Commissioner if a need arises thereto when the Court deals with the main execution petition for final determination. prm Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The District Munsif cum Judicial Magistrate Court, Nannilam, 2. The Section Officer, VR Section, High Court, Chennai 104 GV(CO) SR/5.8.2009 C.R.P (N.P.D) No.2446 of 2008 And M.P. No. 1 of 2008 https://hcservices.ecourts.gov.in/hcservices/