The main legal point established in the judgment is that unless the earlier report of the Advocate Commissioner is scraped, the question of re-issuing the warrant does not arise.

JUDGMENT :

Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, prayed to set aside the fair and decreetal order dated 08.06.2018 made in I.A.No.775 of 2017 in S.A.No.409 of 2011 in O.S.No.385 of 2007 on the file of the District Munsif Court, Dharapuram.

1. This Civil Revision Petition has been filed against the order dated 08.06.2018 made in I.A.No.775 of 2017 in S.A.No.409 of 2011 in O.S.No.385 of 2007 on the file of the District Munsif Court, Dharapuram.

2. I.A.No.775 of 2017 was filed by the Revision Petitioner/1st defendant to re-issue the warrant of Advocate Commissioner, to revisit the suit schedule property and to file an additional report and plan.

3. The learned counsel for the Revision Petitioner submitted that the respondent/plaintiff filed an application in I.A.No.409 of 2011 to appoint an Advocate Commissioner to measure the suit schedule property with the assistance of the Surveyor. Accordingly, the Court below appointed the Advocate Commissioner and the property was also measured with the assistance of the Surveyor. The grievance of the Revision Petitioner is that, though the Advocate Commissioner was appointed and the property was measured with the help of the Surveyor, the Surveyor failed to measure the property in a proper way. Therefore, the Revision Petitioner filed I.A.No.775 of 2017 to re-issue the warrant of the Advocate Commissioner to measure the suit schedule property once again. He further submitted that no separate objection was filed by the Revision Petitioner for the Advocate Commissioner's report, only the application to reissue the warrant was filed in the form of objection. Further, there is no impediment to the respondent in re-issuing the warrant of the Advocate Commissioner, whereas it helps to sort out the unnecessary problems. Therefore, he prayed to set aside the order passed by the Court below in I.A.No.775 of 2017.

4. Per Contra, the learned counsel for the respondent/plaintiff submitted that the application for appointing Advocate Commissioner was filed in the year 2017. Accordingly, the Advocate Commissioner was appointed by the Court below and the suit schedule property was measured with the assistance of the Surveyor in the presence of the petitioner as well as the respondent and their respective counsel, thereafter, the report was also filed by the Advocate Commissioner. The petitioner without filing an objection to the Advocate Commissioner's report and scarping the earlier report, has filed the application to re-issue the warrant of the Advocate Commissioner, which is unsustainable. In support of his contention, the learned counsel has referred the order of this Court in the case of K.Balasubramani Vs. A.Krishnasamy Naicker and Others reported in CDJ 2018 MHC 6829.

5. Heard the learned counsel for the petitioner as well as the respondent and perused the materials.

6. Admittedly, the application in I.A.No.409 of 2011 was filed for the appointment of the Advocate Commissioner to measure the suit schedule property with the assistance of the Surveyor and subsequent to the filing of the report, admittedly, no objection was filed by any of the parties. However, the Revision Petitioner filed an objection by way of the application in I.A.No.775 of 2011 to re-issue the warrant of the Advocate Commissioner.

7. The law settled by this Court with regard to re-issuing of the warrant is that, before re-issuing the warrant the earlier report of the Advocate Commissioner has to be scarped. For this exercise, the petitioner has to file an objection before the Court below and the Court below after hearing both the parties has to pass an appropriate order. In the present case, no such exercise was made, whereas, the Revision Petitioner has straightaway filed the application to re-issue the warrant of the Advocate Commissioner. As contended by the learned counsel for the respondent, this Court has strongly taken a view that unless and until the earlier Advocate Commissioner