1. The appellant is the petitioner in I.A.No.158 of 2009 and appellant is the respondent in I.A.No.89 of 2009 in A.S.No.161 of 2008 on the file of the Sub-Court, Theni.

2. The plaintiffs had filed a suit for permanent injunction restraining the defendant from interfering with the peaceful possession. After contest, the said suit was decreed. Aggrieved by the same, the defendant had filed A.S.No.161 of 2008 on the file of the Sub-Court, Theni. Along with the appeal, an application in I.A.No.158 of 2009 was filed under Order 41 Rule 5 of the Code of Civil Procedure to stay all further proceedings in the suit as already, the plaintiffs had initiated E.P.No.4 of 2009 before the District Munsif Court, Theni.

3. The said application was contested by the respondents on the ground that the very application is not maintainable as the respondents/decree holder had levied execution and filed a petition under Order 21 Rule 32 of the Code of Civil Procedure for disobedience of the decree. Therefore, according to the respondents, an application filed under Order 41 Rule 5 of the Code of Civil Procedure is maintainable only for stay of the operation of the decree and the execution proceedings cannot be stopped.

4. The said application was dismissed by the Sub-Court, holding that the application itself is filed belatedly in the year 2009. The appeal was filed in the year 2008. Aggrieved by the same, C.R.P.NPD (MD)No.1821 of 2010 is filed.

5. The plaintiffs who are the respondents in C.R.P.NPD (MD) No.1822 of 2010 had filed I.A.No.89 of 2009 in A.S.No.161 of 2008 on the file of the Sub-Court, Theni for appointment of Commissioner to note down the physical features and locate the suit property with the help of the Surveyor.

6. According to the respondents herein, the revision petitioner is trying to trespass into the suit properties claiming to be the owner in spite of the decree being passed in favour of the plaintiffs. The petitioner herein, who is the defendant had not surveyed his land at the time of his purchase which is the adjacent property of the plaintiffs. Only when the respondents took steps to survey the disputed land with the help of the Surveyor, the dispute arose and the suit was filed and the same was decreed. Despite the decree, as the defendant/judgment debtor had been trying to trespass into the property, an application was filed by the plaintiffs to appoint an Advocate Commissioner to note down the physical features and locate the suit property with the help of a Surveyor.

7. Though the said application was resisted by the petitioner herein, the same was allowed by the Sub-Court, Theni by appointing a Commissioner to survey the suit property with the help of the surveyor and submit a report and plan. Aggrieved by the allowing of I.A.No.89 of 2009, the appellant/petitioner has filed the Civil Revision Petition No.1822 of 2010.

8. Now, the question that has to be decided is whether both the Civil Revision Petitions have to be allowed.

9. The suit is filed by the plaintiffs for bare injunction and the same is also decreed and the appeal is filed by the defendant, who had lost in the suit. No doubt, the defendant had filed the stay application with a delay but that does not disentitle the appellant/defendant from obtaining an order of stay of further proceedings. When an appeal suit is automatic, if there is no interim order granted, it would render the decision in an appeal valueless when the appeal is disposed of on merits.

10. At the same time, the decree holder has filed an application for appointment of a Commissioner in a suit for bare injunction. According to the plaintiffs, there is a boundary dispute and the documents which are available being the interested testimony of the parties alone will not resolve. Though it may be a suit for injunction, since the dispute relates to the boundary, the learned counsel for the respondent contended that the appointment of the Commissioner was correct. The local investigation by t