M BALACHANDRAN Vs. P MANTHIRI

JUDGEMENT

(1.) M. BALACHANDRAN, the petitioner herein, is the defendant in the suit for mandatory injunction filed by the respondents in O. S. No. 1260 of 1990. The suit was decreed on 4. 1. 1995. The execution petition was filed in E. P. No. 211 of 1995. The Executing Court appointed an Advocate Commissioner to demolish the construction. The petitioner, the judgment-debtor filed E. A. No. 161 of 2004 under Section 47 C. P. C. challenging the decree and also seeking a direction from the Executing Court to the Advocate Commissioner to conduct survey of his property to ascertain as to whether any encroachment is made by him with the help of the qualified Surveyor. The above application has been dismissed by the Executing Court. Hence, this revision.

(2.) MR. S. N. AMARNATH, the learned counsel for the petitioner, while challenging the order impugned, would cite the decisions in KAMALAATHY v. B. SUBRAMAIAH (2001 (2) C. T. C. 331) and PERUMAL NAICKER v. RATHINA NAICKER (2004 (3) M. L. J. 359) and contend that under Section 47, the Court is empowered to determine all questions arising between the parties relating to the execution of the decree in order to avoid the parties to try to file another suit and as such, ambiguity in decree could be removed and exact area of encroachment could be found out by appointing an Advocate Commissioner.

(3.) WHILE justifying the impugned order, Ms. P. T. Asha, the learned counsel for the respondents, would contend that the chequered history in this case would indicate that the petitioner has misused the process of the Court and instead of challenging the decree passed in the suit and the subsequent order passed in the interlocutory application before the appellate Court, after 4 years, he has chosen to file this application in the execution petition challenging the decree and the said relief is not valid and the decision arrived at by the Executing Court is perfectly correct. She would also cite the judgments in SIVASAMY v. RAJU MUDALIAR (2004 (2) M. L. J. 724) and PERUMAL NAICKER v. RATHINA NAICKER (2004 (3) M. L. J. 359 ).