The executing Court must facilitate the execution of decrees and cannot dismiss petitions based on technical boundary identification issues; appointment of an Advocate-Commissioner is necessary for effective execution.

ORDER :

K. SUJANA, J.

Since the issue involved in all these criminal petitions is one and the same, they are being heard together and are being decided by way of this common order.

2. C.R.P.No.3355 of 2018 is filed challenging the order dated 23.03.2018 passed in E.P.No.1 of 2009 in O.S.No.65 of 1976 by the learned Senior Civil Judge, Nalgonda; C.R.P.No.2030 of 2018 is filed challenging the order dated 23.01.2018 passed in E.A.No.173 of 2017 in E.P.No.01 of 2009 by the learned Senior Civil Judge, Nalgonda.

3. The brief facts of the case are that the Revision Petitioners filed O.S.No.65 of 1976 seeking recovery of possession of properties listed in “A” and “B” schedule and for rectification of records. This suit was clubbed with O.S.Nos.245 of 1978 and 53 of 1979. By a common judgment dated 31.03.1986, O.S.No.65 of 1976 was decreed in favour of the Petitioners, while the other two suits were dismissed.

Respondent No.1 filed appeals (A.S.Nos.1671 and 1729 of 1986) before this Court, which were also dismissed on 19.06.2000. To enforce the decree, the petitioners initially filed E.P. under S.R. No. 53 of 2002, which was returned due to lack of boundary details of the property. Another E.P.No. 72 of 2003 was filed but closed on 14.11.2005 as the warrant for delivery was returned unexecuted for want of proper property description. Subsequently, E.P.No.1 of 2009 was filed. An Advocate Commissioner was appointed but failed to complete the execution. Later, E.A.No.173 of 2017 was filed for appointment of a new Commissioner to locate “A” schedule property, but it was dismissed due to inadequate boundary details. Finally, E.P.No.01 of 2009 was filed, but the trial Court dismissed the execution with respect to the “A” schedule property, citing inability to identify it based on existing records and commissioner reports. Challenging the said orders, the present civil revision petitions are filed.

4. Heard Sri S. Balchand, learned counsel appearing on behalf of the petitioners. Though notice served upon the respondents, none appeared on their behalf.

5. Learned counsel for the Petitioners submitted that the order passed by the trial Court is contrary to both facts and settled principles of law. It is contended that the trial Court has failed to appreciate that in matters involving disputes regarding the identity of the property, it is a well-established principle that appointment of an Advocate-Commissioner, even with the assistance of a qualified surveyor, is not only permissible but necessary, and does not amount to collection of evidence. The trial Court has erroneously dismissed E.A.No.173 of 2017 without due consideration of this principle. He further submitted that the first execution petition filed in the year 2002 was returned at the S.R. stage as not executable, and the second E.P.No.72 of 2003 was closed without effective adjudication on the ground of absence of a field assistant’s report. He strongly contended that the executing Court cannot question the validity or executability of a decree and must only facilitate its execution, and the observations made by the executing Court questioning the decree and lamenting the dismissal of the appeal are both misplaced and beyond its jurisdiction.

6. Learned counsel for the petitioner further submitted that at the time of institution of the suit O.S.No.65 of 1976, the petitioners were minors represented by their next friend, and hence they were unaware of specific boundary details. The properties involved are agricultural lands in different survey numbers, often without clear boundaries in official