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Andhra Pradesh High Court
Judges : N.D.PATNAIK
B.Narasappa - Appellant
Versus
B.Govindappa - Respondent
Decided On : 08-01-91
Commissioner - Execution Proceedings - The court held that the provisions of Order 26, Rule 9 CPC are not applicable to execution proceedings in view of Section 141 C. P. C., and therefore, dismissed the petition to appoint a Commissioner in execution proceedings.
Fact of the Case:
The petitioner and another filed a claim petition contending that they are the purchasers of the property and that the property has been sold at a low price. They filed another application to appoint a Commissioner to inspect the land in question in order to ascertain its value. The District Munsif dismissed the application.
Finding of the Court:
The court held that the provisions of Order 26, Rule 9 CPC are not applicable to execution proceedings in view of Section 141 C. P. C., and therefore, dismissed the petition. The court also ruled that it is not open to appoint a Commissioner in execution proceedings.
Issues: The main issue was whether the provisions of Order 26, Rule 9 CPC could be invoked in execution proceedings or if Section 141 C. P. C. precluded such invocation.
Ratio Decidendi: The court interpreted that under Section 141 CPC, the provisions of Order 26, Rule 9 CPC are not applicable to execution proceedings, and therefore, it is not open to appoint a Commissioner in execution proceedings.
Final Decision: The revision petition was dismissed with no costs.
( 1 ) IN execution of the mortgage decree obtained by the first respondent, the hypothecated property wasbrought to sale in EP No. 59/83 in O. S. No. 13/81 on the file of the District Munsif s Court, Kalyandurg. The petitioner herein and another filed a claim petition EA No. 72/85 contending that they are the purchasers of the property and that the property has been sold at a low price. They filed another application EA No. 157/88 to appoint a Commissioner to inspect the land in question in order to ascertain its value. The learned District Munsif dismissed the application, against which this revision is filed.
( 2 ) THE learned District Munsif held that the provisions of Order 26, Rule 9 CPC are not made applicable to execution proceedings in view of Section 141 C. P. C. and therefore, dismissed the petition.
( 3 ) IN this revision, the learned counsel for the petitioner has contended that though the petition under Order 26, Rule 9 CPC is not maintainable, it can be maintained under Section 151 CPC under inherent powers of the Court. But what the learned counsel for the respondent contends is that when once under S. 141 CPC the provisions are not applicable to execution, it is not open to invoke Section 151 CPC and appoint a Commissioner which is not other wise permissible under the provisions of the Civil Procedure Code. I agree with the contention of the learned counsel for the respondent and also the order of the Lower Court that it is not open to appoint a Commissioner in execution proceedings. Therefore, there are no merits in the revision petition. The revision is dismissed. No costs.
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