GIRISHCHANDRA RASIKLAL SHAH Vs. HASUMATIBEN JAYANTILAL RANA

JUDGEMENT

(1.) Rule. Mr.Murli N. Devnani, learned advocate, waives service of notice of Rule for the respondent. On the facts and in the circumstances of the case, and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.

(2.) The challenge in this petition under Articles 226 and 227 of the Constitution of India, is to the order 22.08.2013, passed by the learned Principal Civil Judge, Dakor ("the Executing Court" for short), below the application at Exh.15, preferred by the petitioner for appointment of a Court Commissioner.

(3.) The brief facts of the case, relevant to the present proceedings, are that the petitioner is the original plaintiff of Regular Civil Suit No.3 of 2001, which was instituted, inter alia, with a prayer for declaration, mandatory injunction and prohibitory injunction. According to the petitioner, he is the owner of House No.2648, in Dakor Nagar Panchayat. The wall of the said house, on the eastern side, is of the independent ownership of the petitioner. It is the case of the petitioner that the respondent (original defendant) has encroached upon the disputed wall and caused a breach of the easementary rights and privacy of the petitioner. The suit of the petitioner was decreed, vide judgment and decree dated 27.02.2012. Execution Petition No.35 of 2012, was preferred by the petitioner for implementation of the said judgment and decree. The respondent preferred objections vide Exh.9, which came to be dismissed, vide order dated 28.03.2012. An appeal has been preferred by the respondent against the above order. The petitioner, thereafter, preferred application at Exh.15, for the appointment of a Court Commissioner, for removal of the encroachment as per the decree passed by the Trial Court. This application has been rejected by the impugned order dated 22.08.2013, passed by the Executing Court, on the ground that the provisions of Section 75 and Order 26 Rule 9 of the Code of Civil Procedure, 1908 ("the Code" for short) are not applicable to execution proceedings.