Petitioners can seek a commission to assess property post-dismissal when alleging alterations, despite not securing a favorable decree.

JUDGMENT

This Original Petition has been filed against the dismissal of I.A.No.3/2025 in A.S.No.13/2025 on the file of the Court of the Civil Judge, Punalur, which has been filed for issuance of Commission to find out the present status of the property. The petitioner is the plaintiff in a suit for injunction, which has been dismissed. A.S.No.13/2025 has been filed by the petitioner and I.A.No.3/2025 has been moved in the said appeal alleging that subsequent to the dismissal of the suit, the respondents have made alterations in the property. Petitioner wants the said aspects to be brought on record through the Commission. By Ext.P8 order, the application has been dismissed. In paragraph 4 of Ext.P8, it is stated thus-

“It is pertinent to note that the petitioners did not file any application before the trial Court which passed the decree or this Court to stay the operation of the decree as contemplated under O.41 R.5 CPC. Once the appeal is ended up in their favour and the decree is varied, reversed, set aside or modified, then they can ask for restoration of status quo ante in an application seeking restitution as provided under S.144 CPC.”

2. This is not a case where there is any decree in favour of the petitioner. It is a case where the suit itself was dismissed. So, the above observations do not in any manner relate to the facts of the case. It is also stated that there is a commission report prepared at the trial stage and the same is available on record. This is all the more reason why the request of the petitioner has to be considered, since according to the petitioner, there is a variation from what had been recorded by the earlier commission.

The Original Petition is allowed. Ext.P8 order is set aside and I.A.No.3 of 2025 stands allowed. The appellate Court shall appoint an Advocate Commissioner and call for the report at the earliest and dispose of the appeal after the report is received. Since, the appellate Court had already reported to this Court that the appeal can be disposed of within four months, it is only appropriate that the entire appeal be disposed of after following the procedure which has been indicated, within a period of six months from the date of receipt of a copy of this judgment.

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