The Court emphasized that petitions to re-issue warrants during the pendency of appeals should have merit and not be used to prolong proceedings.

1. The Revision Petitioner who is the first appellant in A.S.No.8 of 2001 on the file of Sub Court, Ariyalur has filed this revision petition against the dismissal order passed in I.A.No.326 of 2004 by the First Appellate Court.

2. For the sake of convenience, the petitioner in I.A.No.326 of 2004 is referred as the revision petitioner and the respondents are referred as respondents hereafter.

3. The first respondent herein filed a suit in O.S.No.23 of 1999 for declaration and permanent injunction. The Trial Court has decreed the above said suit as prayed for the first respondent herein. Aggrieved by the above said decree and judgment passed by the Trial Court, the revision petitioner and the respondents 2 and 3, who are defendants 1 to 3 in the original suit preferred first appeal in A.S.No.8 of 2001 and it is pending.

4. During the pendency of the above said first appeal, the revision petitioner, who is the first defendant / first appellant in first appeal filed a petition in I.A.No.326 of 2004 under Order XXVI Rule 9 and Section 151 of code of Civil Procedure to re-issue the warrant to the Commissioner with a direction to measure the suit property with a help of a surveyor and to file a report and plan. In the above said affidavit, the revision petitioner has stated that during the pendency of the suit before the Trial Court, the Trial Court has appointed Commissioner to measure the suit property, accordingly the Commissioner filed a report and plan. But the Commissioner failed to fix the boundary of the revision petitioner's property and the street. Further it is stated that immediately after filing the Commissioner's Report and plan the Revision Petitioner has filed an objection. But without considering the same, the Trial Court has decreed the suit as prayed for by the first respondent herein. In the above said circumstances, the revision petitioner filed a petition to re-issue the warrant to the Commissioner before the First Appellate Court to measure the property with a help of a surveyor and file a report and plan.

5. The first respondent filed a detailed counter, in which he has specifically denied the contentions of the revision petitioner stated in the affidavit. It is further stated that the first respondent filed the suit for declaration and injunction before the Trial Court. Before the trial Court, after examined the witnesses on the side of the first respondent / plaintiff's, in order to delay the proceedings, the revision petitioners and the respondents 2 and 3 who are defendants 1 to 3 in the suit filed a petition to appoint an Commissioner. The Trial Court appointed an Advocate Commissioner and directed to visit the suit property in the presence of all the parties in the suit and also their counsels and measure the property and note down the physical features and file report and plan. Accordingly, the Advocate Commissioner inspected the suit property in the presence of parties and counsels and filed detailed report and plan before the Trial Court. On the side of the revision petitioner, examined the above said advocate Commissioner as a witness and the revision petitioner also examined other witnesses and then the Trial Court has discussed the entire oral and document evidence adduced on either side and finally decreed the suit as prayed for by the first respondent. It is also averred in the counter that the Revision Petitioner falsely claimed as if the suit property is a lane. Further the revision petitioner has not taken any steps to re-issue the warrant to the Advocate Commissioner before the Trial Court, in spite of sufficient time given for the revision petitioner. Further, the revision petitioner has not filed any petition to re-issue the warrant immediately after filing the first appeal also. Only after posting the first appeal for hearing, petition for re-issue commissioner warrant is filed only to prolong the proceedings and absolutely no merits in the petition and therefore, prayed for di