VADLAMANI SURYANARAYANA MURTHY Vs. SARIPALLI BALAKAMESHWARI

JUDGEMENT

(1.) Petitioner filed O.S.No.55 of 1990, in the court of Principal Junior Civil Judge, Vizianagaram, against the respondents, for the relief of recovery of possession, to an extent of 6 inches x 14 feet of land, and for mandatory injunction for removal of the slabs in 1st and 2nd floors, with the same measurement' overlapping into the property of the petitioner. The suit was decreed ex parts on 28.4.1995. After the decree became final, the petitioner filed E.P.No.65 of 2002. Since there was some resistance by the respondents, he filed E.A.No.278 of 2002, for removal of obstruction. At that stage, the respondents filed E.A.No.501 of 2003, with a prayer to appoint a Commissioner, to note the physical features, on the site. It was opposed by the petitioner, and the executing court allowed the E.A., through its order dated 12.9.2003. Hence, this C.R.P.

(2.) Sri K.S.R,Murthy, learned counsel for the petitioner, submits that the provisions of Order XXVI C.P.C., do not apply to the execution proceedings, and places reliance upon a judgment of this court in B.NARASAPPA v. B.GOVIDAPPA1992 (I) ALT 48. He contends that even otherwise, there was no basis for appointment of Commissioner, and such a step would amount to nullifying the decree and enabling the executing court to undertake fresh adjudication into the matter, on merits.

(3.) Sri G. Ram Gopal, learned counsel for the respondents, on the other hand, submits that the provisions of Order XXVI CPC are specifically made applicable to the execution proceedings also, by adding Rule 18-A, and that the same was taken into account by this court in CHAKKA RANGA RAO v. MOLLA MUSTARI BANU 2006(5) ALT 220, On inerits, the learned counsel submits that there is serious dispute, as to the nature of so-called encroachment, and the measures to be taken by an Advocate Commissioner, would be helpful to the executing court, in enforcing the decree. the exparte decree passed in favour of the petitioner became final, after as many as three applications filed in a series were dismissed for default. The decree is for recovcry of the strip of land referred to above, as well as for removal of the portion of the slab, with the same measurements. During the course of execution, the respondents offered resistance. That prompted the petitioner to file an application for necessary orders for removal of obstructions. Initially, an order was passed, and thereafter, it was set aside, at the Instance of the respondents, E.A.No.501 of 2003 was filed by the respondents, for appointment of the Commissioner, and the executing court acceded to their request. /So far as the first objection raised by the petitioner, as to the applicability of the provisions of Order XXVI C.P.C. to execution proceedings, is concerned, Rule 18-A of Order XXVI C,P,C,, makes it amply clear that appointment of Commissioner is permissible in execution proceedings also. In B.Narasappa's case (1 supra], this court held that Order XXVI Rule 9 C.P.C., does not apply to execution proceedings. Reference was made to Section 141 C.P.C., for this purpose. In this regard, it needs to be observed that Section 141 makes the procedure under the Code applicable to miscellaneous proceedings also, and in the explanation, the only set of proceedings that are excluded from its purview, are those under Article 226 of the Constitution of India. There is no indication to the effect that the procedure in the C.P.C., does not apply to execution proceedings. In fact, it would be contradiction in terms. The slight doubt that may linger, in this regard, stands clarified