N. RAJADURAI Vs. BENADICT

JUDGEMENT

(1.) These Revisions are preferred as against the Docket Order, dtd. 2/3/2020 recording the Order of Delivery and terminating the E.P. No.29 of 2019 in O.S. No.355 of 1979 on the file of the District Munsif Court, Padmanabhapuram and to set aside the Amin Report, dtd. 28/2/2020 effecting delivery in E.P. No.29 of 2019 in O.S. No.355 of 1979 on the file of the District Munsif Court, Padmanabhapuram.

(2.) According to the Revision Petitioner, the Amin report dtd. 28/2/2020 and consequential order of terminating the EP are illegal and unsustainable. It is submitted that the Court below mechanically ordered delivery when the Amin has filed the Report on 21/1/2020 stating that a 3rd party has constructed a building in the Suit land. While so, the decree holder has to file an Application under Order 21, Rule 97 of Code of Civil Procedure for removal of obstruction. Without the said application, the Decree-holder cannot proceed further in the Execution Petition.

(3.) Moreover, the Amin was incorrect in mentioning in his report that the neighboring property belong to the Petitioner and recorded paper delivery. The Executing Court ought not to have terminated the E.P., by recording the report of the Amin, which is per se illegal and unsustainable. The description of the property allotted to the Respondents 1 to 6 in the Advocate Commissioner's Report does not convey any meaning. The Decree itself is inexecutable. Therefore, the Docket Order passed by the Executing Court recording the delivery and terminating the E.P., is unsustainable under law and liable to be set aside.