The appointment of an Advocate Commissioner for execution and the Decree Holder's right to execute the decree despite the pendency of an appeal were the central legal points established in the judgment.

The above Civil Revision Petition arises against the fair and decreetal order passed in E.A. No. 131 of 2013 in E.P. No. 80 of 2011 in O.S. No. 1033 of 1997 on the file of the District Munsif Court, Tiruvottiyur, the Judgment Debtor/defendant is the revision petitioner and the respondent is the Decree Holder/plaintiff.

2. The plaintiff filed the suit in O.S. No. 1033 of 1997 for declaration and for recovery of possession.

3. After contest, the trial Court decreed the suit in O.S. No. 1033 of 1997. As against the judgment and decree passed in the suit, the defendant preferred an appeal in A.S.No.15 of 2005 on the file of the Subordinate Court, Ponneri and the Lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. Aggrieved over the judgments and decrees of the Courts below, the defendant preferred a Second Appeal in S.A. No. 1279 of 2013 before this Court and the Second Appeal is pending. In the said Second Appeal, the defendant also filed a petition in M.P. No. 1 of 2013 seeking for interim stay of all further proceedings in O.S. No. 1033 of 1997. However, this Court has only ordered notice to the respondent in the stay petition.

4. Pursuant to the decree passed in O.S. No. 1033 of 1997, the respondent/plaintiff filed an Execution Petition in E.P. No. 80 of 2011 on the file of the District Munsif Court, Tiruvottiyur for recovery of possession. In the said Execution Petition, the Judgment Debtor took out an application in E.A. No. 131 of 2013 under Order 26 Rule 9 of the Civil Procedure Code seeking for appointment of Advocate Commissioner along with a Taluk Surveyor to inspect the property and to note down the physical features and to identify with the Execution Petition Schedule property. In the affidavit filed in support of the petition, the Judgment Debtor has stated that the Execution Petition was filed only to execute the decree passed in O.S. No. 1033 of 1997, which relates to 120 sq.ft only, which consists of its distinct boundaries wherein the said property is neither door locked nor E.B. service connection is provided and the Decree Holder with mala fide intention to usurp the entire property having filed the Civil Suit and the Execution Petition for an extent of 120 sq.ft wants to execute it for larger extent of 2000 sq.ft. In the Bailiff's report, he has stated that the property consists of a hut measuring about 30 feet along with service connection.

5. Mr. V. Raghavachari, the learned counsel appearing for the petitioner submitted that since a larger extent was mentioned by the Court Bailiff at the time of taking delivery of possession, the suit property should be properly identified before taking possession of the same. Further, the learned counsel submitted that in view of the pendency of the Second Appeal, the respondent/Decree Holder should not be permitted to execute the decree. The application filed by the Judgment Debtor seeking for appointment of Advocate Commissioner was contested by the plaintiff. The Executing Court, taking into consideration the case of both parties, dismissed the application.

6. It is pertinent to note that even before the trial Court, an Advocate Commissioner was appointed and the Advocate Commissioner also filed his report and plan before the trial Court, which were marked as Exs.C1 and C2. After taking into consideration the Exs.C1 and C2 documents, the trial Court as well as Lower Appellate Court, decreed the suit in favour of the respondent. No doubt, the judgments and decrees passed by the Courts below are under challenge in the Second Appeal in S.A. No. 1279 of 2013 and this Court has not, so far, granted stay of all further proceedings in O.S. No. 1033 of 1997. When the Advocate Commissioner appointed before the trial Court had filed his report and plan, after measuring the suit property, there is no necessity for appointing another Advocate Commissioner in the Execution Petition. No doubt, the Decree Holder can take possess