V S KAMARUDDIN Vs. M A ABDUL MAJID

JUDGEMENT

(1.) The revision petitioner in both the revision petitions is the first defendant/judgment-debtor in O.S.No.68 of 1993 on the file of the District Munsif Court, Senkottah (Originally O.S.No.449 of 1992 on the file of District Munsif Court, Tenkasi). Both the revision petitions are filed against the dismissal of the claim petition E.A.No.52 of 2000 filed under Section 47 C.P.C. and against the dismissal of E.A.No.54 of 2000 filed under Order 26 Rule 9 C.P.C. for the appointment of advocate-commissioner.

(2.) The respondent/plaintiff/decree-holder filed the suit O.S.No.449 of 1992 in the District Munsif Court, Tenkasi which was on transfer renumbered as O.S.No.68 of 1993 in the District Munsif Court, Senkottah against the first defendant/revision petitioner and four others for declaration that the suit second schedule of the suit properties belongs to the plaintiff and the defendants 2 to 5 and for permanent injunction from putting up construction in the suit properties by the first defendant/revision petitioner and for mandatory injunction for removal of the construction put up by the first defendant/revision petitioner in the suit second schedule of the suit properties and after such removal to deliver the same to the plaintiff. The suit was filed on 9.9.1992. The suit was not contested by the defendants including the first defendant/revision petitioner, though the first defendant entered appearance through advocate and filed written statement on 4.1.1993 and so ex parte decree was passed on 6.3.1996 as prayed for directing the first defendant to remove the construction put up in the second schedule of the suit properties on or before 6.4.1996. It appears previously an ex parte decree was passed on 28.11.1994 and that was set aside as per order in I.A.No.333 of 1994 dated 18.8.1995. It also appears an advocate-commissioner was appointed in the suit and the report has been filed by the advocate-commissioner after visiting the suit properties.

(3.) Since the construction was not removed as decreed by the trial Court, the respondent/plaintiff/decree-holder filed E.P.No.15 of 1997, in which there was an ex parte order dated 21.11.1997. The appeal in C.M.A.No.9 of 1997 filed against the ex parte order was dismissed. Such order has been confirmed by this Court in C.R.P.No.3649 of 1997 dated 8.12.1998, but, however, directed the Executing Court to pass fresh order on the basis of counter filed by the first defendant/revision petitioner and the order of the Executing Court for removal of superstructure was set aside. In the meantime, the plaintiff/decree-holder filed unnumbered E.A. of 1997 on 15.12.1997 under Order 26 Rule 9 and Section 151 C.P.C. For appointment of advocate commissioner to demarcate the second schedule of the suit properties with the assistance of the Civil Engineer for the removal of the concrete beds laid in the second schedule of the suit properties in the presence of the Court Amin. The said petition was rejected as not maintainable on 28.1.1998. As per the direction issued by this Court in C.R.P.No.3649 of 1997, the Executing Court granted two weeks time for removal of the construction put up by the first defendant in the second schedule of the suit properties and to deliver after removal of such construction. The delivery warrants were returned for want of time, for want of police help and for non availability of Village Administrate Officer and it was finally returned on 7.1.2000 as not executable without giving notice to occupants of the schedule of the suit properties. It appears again delivery was ordered and the delivery warrant was returned unexecuted as plaintiff absent on 20.3.2000. Then E.A.Nos.52, 53, 54, 68 and 69 of 2000 were filed. E.A.No.52 of 2000 was filed under Section 47 of Civil Procedure Code by the first defendant subject matter of C.R.P.No.2184 of 2000. E.A.No.54 of 2000 was filed under Order 26 Rule 9 C.P.C. for appointment of advocate-commissioner, subject matter of C.R.P.No.2185 of 2000. Both the applications E.A.Nos.52 of 2000 and 54 of 2000 were dismissed by the executing Court on 25.7.2000 stating that the Executing Court cannot go beyond the scope of the decree. It appears E.A.Nos.53 of 2000, and 68 of 2000 were also dismissed on 25.7.2000. Therefore, the first defendant has filed these Civil Revision Petitions against the dismissal of E.A.Nos.52 of 2000 and 54 of 2000 respectively.