The appointment of an advocate-commissioner during execution proceedings is justified for measuring the joint wall essential for enforcing a decree.

ORDER :

(K. Manmadha Rao, J.)

This Revision Petition, under Article 227 of the Constitution of India, is preferred against the order, dated 21.09.2015, in E.A.No. 555 of 2015 in E.P.No.85 of 2013 in O.S.No.467 of 2003 on the file of the Court of the Principal Junior Civil Judge, Palakol, West Godavari, (in short “the court below’) which was filed under Order 26, rule 9 read with Section 151 of C.P.C for appointment of an Advocate/ Commissioner to measure the joint wall as per the documents of the both the parties with the assistance of surveyor and to note down the physical features of the existing wall after identifying the same with measurements and file the report along with plan into Court.

2. The petitioners herein are the defendants 4 and 5; respondents herein 1 to 3 are the defendants 1 to 3 and respondents 4 and 5 herein are the plaintiffs in the suit.

3. The plaintiffs i.e respondents 4 and 5 herein have filed a suit for declaration of ABCD wall is the joint wall of the plaintiffs and 1st defendant and for mandatory injunction, directing the defendants to construct ANMG part of joint wall by closing the drain therein and to construct GHCD joint wall at the expenses of defendant and for permanent injunction restraining the defendants from constructing any other constructions in ABCD joint wall. The said suit was decreed on 23.11.2004. In the said suit E.P.No.85 of 2013 has been filed for execution of the decree and judgment dated 23.11.2004. In the said execution proceedings, the defendants/J.Drs therein have filed the impugned application in E.A.No.555 of 2015 for appointment of advocate-commissioner to note down the existing physical features therein.

4. After hearing on both sides, the court below held that the petition is not proper and amounts to collection of evidence and beyond the scope of the Execution Petition. Taking measurements of joint wall with the help of documents of both parties with the assistance of Mandal Surveyor cannot be done at the stage in executing the decree, which can only be done in the suit and dismissed the said application. Assailing the same, the present Revision came to be filed.

5. Heard Mr. K. Chidambaram, learned Senior Counsel for the petitioners and learned counsel for the 5th respondent.

6. During hearing learned counsel for the petitioners would mainly contend that the court below failed to observing the fact that the ABCD portion is the joint wall as per the decree and the petitioners directed to construct the 14 inches width of wall and to remove the drain, therefore, there is no need to appoint a Commissioner to ascertain whether the said wall is a joint wall or not and the drainage in existence or not by misinterpreting the reasons for filing the said petition. Further it is not the case of the petitioners that the executing court can go beyond the decree and the simple case of the petitioners is that the decree has already been complied with and it is just and necessary to appoint an Advocate/ commissioner to effect necessary measurements only. Therefore the revision is liable to be allowed, by setting aside the impugned orders of the court below.

7. Whereas, learned counsel for the 5th respondent reiterated the contentions urged in the C.M.A and vehemently opposed to allow the revision.

8. Perused the record.

9. The court categorically mentioned in its order that there is a joint wall shown as ABCD and there is no dispute with regard to the same. Even according to contentions of both the parties, the ABCD is a joint wall and as per the decree, the 5th defendant is directed to construct wall at a width of 14 inches and to remove the drai