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L. VICTORIA GOWRI
Pitchammal – Appellant
Versus
Sivaniyapillai Ammal – Respondent
ORDER :
(Prayer : Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 13.12.2013 passed in I.A.No.370 of 2013 in O.S.No.397 of 2011 on the file of the Additional District Munsif Court, Tuticorin.)
This Civil Revision Petition has been preferred as against the order passed by the learned Additional District Munsif Court, Tuticorin in I.A.No. 370 of 2013 in O.S.No.397 of 2011 dated 13.12.2013 by the petitioners/5th to 7th defendants. I.A.No.370 of 2013 was filed by the petitioners/5th to 7th defendants in the month of September, 2013 under Order XXVI, Rule 9 and Section 151 of the Code of Civil Procedure, 1908, seeking to re-issue the warrant directing the Advocate Commissioner to measure the plaint schedule property from West to East in terms of the original partition deed covering the shares of each and every shareholder along with the petitioners' share with the assistance of a surveyor. For the sake of convenience, the parties herein are referred to as arrayed in the I.A.No.370 of 2013 in O.S.No.397 of 2011.
2. The said application was resisted by the 1st respondent/plaintiff, stating that the petitioners/5
Re-issuance of warrant for proper measurement of property by the same Commissioner at the instance of a party, who has resumed conducting his case after setting aside the ex parte order against him, ....
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.
Trial court must allow reissuance of commissioner's warrant if report has discrepancies, ensuring fair opportunity to prove case.
Appointment of Court Commissioner – Delay alone is not a sufficient ground to reject prayer.
Objections to Advocate Commissioner's report mandatory before re-issuance; delay bars late applications post-impleadment.
Objections to Advocate Commissioner's report must precede re-issuance application.
The necessity of appointing an advocate commissioner to measure the property in order to adjudicate the issue between the parties, and the court's discretion to eschew an earlier commissioner's repor....
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