KANDHATHAL Vs. MUTHAMMAL

JUDGEMENT

(1.) The Revision Petitioner is the Plaintiff in O.S. No. 2394 of 2000 on the file of the Court of I Additional District Munsif, Coimbatore, and it was filed for the following relief:

(2.) In the Execution Petition, an Advocate Commissioner was appointed and after visiting the property, he filed his Report, wherein he has stated that he has removed the obstructions upto 22 feet length 21/2 feet height in the east-west on the south and on the north-south on the east and west 6.6 feet each side. The Commissioner has further stated that he has also removed the offending construction i.e. stones and woods and when he tried to take delivery and hand over the Petition mentioned property, Judgment-debtors, all of a sudden obstructed taking delivery and handing over of the property and once again, dumped the removed articles in the same place. Thereafter, the Judgment debtors filed E.A. No. 387 of 2005 under Section 151 of C.P.C. stating that in the Suit, there is no specific prayer for recovery of possession and therefore, prayer made in the Execution Petition with regard to the handing over of possession of the property, cannot be granted. The Respondent therein/decree-holder filed their Counter Affidavit stating that even as per the Advocate Commissioner's Report, the Commissioner had removed the offending obstructions but once again, the removed articles have been put back in the same place by the Judgment-debtors. Once a decree for mandatory injunction was executed, the Plaintiff/decree-holder should be made to put in possession. Therefore, the prayer made in the Execution Petition is sustainable.

(3.) The Lower Court, after taking into consideration the averments made in the Petition as well as the Counter Statement held that in the Decree passed in the Suit, there is no specific prayer for delivery of possession and therefore, the prayer column in Clause 10 of the Execution Petition needs to be amended and therefore, ordered amendment and directed the Advocate Commissioner to execute the warrant subject to the amendment made in Clause 10 of the Execution Petition. The decree-holder, challenging the vires of the said Order dated 6.6.2006, has filed this Revision.