The court is not obliged to permit the examination of a Local Commissioner unless substantial grounds justify it, highlighting the primacy of modern technology for accurate property demarcation.

JUDGMENT :

Mr. Deepak Gupta, J.

Petitioner herein is the Judgment Debtor before Ld. Executing Court. He is aggrieved by the impugned order dated 18.4.2023 passed by the executing court of ACJ(SD), whereby the application moved by him under Order 26 Rule 10 (2) CPC for examination of the Local Commissioner i.e. Naib Tehsildar, Karnal and Mr. Nitin, Junior Engineer (Civil), Panchayati Raj Karnal, has been dismissed.

2. As the paper book would reveal, the suit for specific performance filed by the plaintiff-Decree Holder (Respondent herein) was decreed by learned Additional Civil Judge (Senior Division), Karnal vide judgment dated 14.03.2017. The said judgment attained finality, inasmuch as the appeal filed by the JD — defendant (petitioner herein) was dismissed by the Appellate Court on 01.09.2021 and Regular Second Appeal filed by him was dismissed by this Court on 18.02.2022.

3. The suit property comprises of a showroom and plot within the boundary wall as shown in the site plan. As per the terms of agreement between the parties, it had been agreed that measurement will be taken at the time of execution of the sale deed and whatever area would be found, the sale deed of the said area would be executed for the price of the said area only.

4. Suit was decreed in the following terms:-

“Suit of the plaintiff is hereby partly decreed with cost to the effect that the plaintiff- Randeep Rana is entitled for specific performance of agreement to sell dated 28.2.2011 in his favour on payment of balance sale consideration in respect of suit land as existing on the site after demarcation within a period of three months from the date of this order and the defendant is directed to get executed the requisite sale deed on the receipt of the balance sale consideration, failing which the plaintiff shall be entitled to get the same executed by the Court of law.”

5. The dispute, as of now, is regarding the measurement of the suit property. Perusal of the paper book further reveals that along with the execution, decree holder moved an application for appointment of a Local Commissioner to demarcate the suit property. Despite service, JD chose not to appear and so, was proceeded ex-parte. Application for demarcation of the suit property was allowed. Tehsildar was directed to get the suit land demarcated. He submitted his report on 15.12.2021, as per which the area of the disputed property was 483 square yards. Thereafter, JD appeared and was allowed to join the proceedings. He prayed for fresh demarcation. The application was allowed. Tehsildar Karnal was again appointed as the Local Commissioner, who after giving notice to both the parties, demarcated the suit land and in his report, found the area of the disputed property to be 483.23 square yards. The Judgment Debtor filed objections to the said report but the same were dismissed by the Executing Court on 20.09.2022. He then filed Civil Revision No.4482 of 2022 before this Court.

6. Disposing of the above Civil Revision on 17.11.2022, a Co-ordinate Bench of this Court passed the following order:-

“The present petition has been filed, challenging an order dated 20.09.2022 passed by the Executing Court, whereby objections, filed at the instance of petitioner/JD to the report submitted by the Local Commissioner in execution proceedings, have been dismissed.

Considering the nature of the dispute, which revolves around the area of property in question, learned counsel for the petitioner submits that the Executing Court has committed an error while passing the impugned order.

On the other