M. Balachandran vs P. Manthiri and Others

M. Karpagavinayagam, J.—M. Balachandran, the petitioner herein, is the defendant in the suit for mandatory injunction filed by the

respondents in O.S. No. 1260 of 1990. The suit was decreed on 4.1.1995. The execution petition was filed in E.P. No. 211 of 1995. The

Executing Court appointed an Advocate Commissioner to demolish the construction. The petitioner, the judgment-debtor filed E.A. No. 161 of

2004 u/s 47, C.P.C. challenging the decree and also seeking a direction from the Executing Court to the Advocate Commissioner to conduct

survey of his property to ascertain as to whether any encroachment is made by him with the help of the qualified Surveyor. The above application

has been dismissed by the Executing Court. Hence, this revision.

Mr. S.N. Amarnath, the learned counsel for the petitioner, while challenging the order impugned, would cite the decisions in Kamalaathy v. B.

Subramaiah 2001 (2) CTC 331 and Perumal Naicker Vs. Rathina Naicker and Jayarama Naicker, and contend that u/s 47, the Court is

empowered to determine all questions arising between the parties relating to the execution of the decree in order to avoid the parties to try to file

another suit and as such, ambiguity in decree could be removed and exact area of encroachment could be found out by appointing an Advocate

Commissioner.

While justifying the impugned order, Ms. P.T. Asha, the learned counsel for the respondents, would contend that the chequered history in this

case would indicate that the petitioner has misused the process of the Court and instead of challenging the decree passed in the suit and the

subsequent order passed in the interlocutory application before the appellate Court, after 4 years, he has chosen to file this application in the

execution petition challenging the decree and the said relief is not valid and the decision arrived at by the Executing Court is perfectly correct. She

would also cite the judgments in Sivasamy v. Raju Mudaliar 2004 (2) MLJ 724 and Perumal Naicker Vs. Rathina Naicker and Jayarama Naicker,

.

I have carefully considered the submissions made by the counsel for the parties and also gone through the typed set and the impugned order.

The suit was filed in O.S. No. 1260 of 1990. The ex parte decree was passed on 4.1.1995. When the defendant filed an application in I.A. No.

1588 of 1999 to condone the delay of 1633 days and to set aside the ex parte decree, the same was contested and ultimately, the said application

was dismissed on 11.11.1999. Either the decree passed in O.S. No. 1260 of 1990 or the order in I.A. No. 1588 of 1999 was never challenged in

the higher forum. On the other hand, the petitioner has come forward with a vexatious application in E.A. No. 161 of 2004 after 4 years

questioning the decree, etc.

It is noticed from the impugned order that earlier in E.P. No. 211 of 1995, the counter has been filed by the petitioner and the final order has

been passed and in pursuance of the order, the Advocate Commissioner went and inspected the spot and at that stage, the petitioner filed an

application to condone the delay of 1633 days and to set aside the ex parte decree. As indicated above, that was also dismissed.

Now, after 4 years, this application has been filed stating that the encroached area has not been properly identified. In the impugned order, the

Executing Court has given clear details about the report of the Advocate Commissioner and observed that there is a proper identification in respect

of the encroached area for which already mandatory decree has been passed and as such, there is no ambiguity.

In Sivasamy v. Raju Mudaliar 2004 (2) MLJ 724 (supra) this Court held as follows:

It is well settled proposition of law that the Executing Court cannot go behind the decree and probe any claim of title to and possession of the

property involved in the execution proceedings. On the contrary, the impugned orders and the affidavits and the petitions filed by third parties

seeking amendment of the execution proceedings would indicate that the relief sought for exceeds the legal limits prescribed by Section 47 of the

CPC for the simple reason that they have virtually prayed for declaration of their title to and delivery of possession of the property described in the

said applications.

In view of the above legal position and on considering the facts of this case, I do not find any merit in the civil revision petition and the same is

dismissed. Consequently, C.M.P. No. 16530 of 2004 is also dismissed. No costs.