Allowed

S.Raju v. S.Balasundaram

Madras HC15 Dec 2015CRP/2621/2015

Case brief

AI extract

What is this about?

In this Civil Revision Petition, the Madras High Court set aside the High Court of Judicature at Madras order of the Execution Court which had erroneously appointed an Advocate Commissioner to fix fair rent, as there is no provision for the same in Order 21 of the Civil Procedure Code. The High Court directed the trial court to dispose of the pending execution petition.

What did the court decide?

The erroneous order of the Execution Court appointing an Advocate Commissioner to fix fair rent was set aside. The Principal District Munsif, Coimbatore was directed to dispose of the pending Executio

S.Raju Vs S.Balasundaram — Execution and Attachment | Madras HC (2015)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

Dated : 15.12.2015

¶4

CORAM:

¶5

THE HONOURABLE MR.JUSTICE M.DURAISWAMY

¶6

C.R.P.(NPD).No.2621 of 2015 and M.P.No.1 of 2015

1.S.Raju

2.S.Palanisamy

3.S.Sambamoorthy

... Petitioners

Vs.

S.Balasundaram

... Respondent

Civil Revision Petition filed under Section 115 of the Civil Procedure Code against the fair and decreetal order dated 04.09.2014 made in E.A.No.120 of 2013 in E.P.No.53 of 2012 in O.S.No.1033 of 2001 on the file of the Principal District Munsif Court, Coimbatore.

¶15

For Petitioners : Mr.R.Subramanian

¶16

For Respondent : Mr.G.B.Saravanabhavan O R D E R

¶17

Challenging the fair and decreetal order passed in E.A.No.120 of 2013 in E.P.No.53 of 2012 in O.S.No.1033 of 2001 on the file of the Principal District Munsif Court, Coimbatore, the defendants have filed the above Civil Revision Petition.

¶18

¶19

2.The trial Court, by its judgment and decree dated 05.08.2004, dismissed the suit for partition and permanent injunction and granted a decree in favour of the plaintiff with regard to the payment of arrears of rent from 01.06.2000 to 31.05.2001 payable by the defendants 3, 6 & 7, amounting to Rs.6,600/- and also decreed the suit by directing the defendants 3, 6 & 7 to pay the arrears of rent within two months to the plaintiff and also decreed the suit by finding that the plaintiff is entitled to one-fourth share in the rents. So far as the suit filed as against the defendants 1, 2, 4 & 5, who are all the tenants, is concerned, the suit was dismissed.

¶20

3.Pursuant to the decree passed in O.S.No.1033 of 2001, the plaintiff filed an Execution Petition in E.P.No.53 of 2012. In the said Execution Petition, the plaintiff took out an application in E.A.No.120 of 2013 seeking for appointment of Advocate Commissioner to fix the fair rent of the property with the help of a Government Engineer. The application filed by the Decree Holder was opposed by the defendants. In the affidavit filed in support of the petition, the Decree Holder has stated that he is entitled to one-fourth share in the rental income and that the rent received by the parties are much more and therefore, an Advocate Commissioner should be appointed to fix the fair rent of the property. The Execution Court, taking into consideration the case

¶21

¶22

of both parties, allowed the application by appointing an Advocate Commissioner to fix the fair rent.

¶23

4.It is pertinent to note that there is no provision under Order 21 of the Civil Procedure Code seeking for appointment of Advocate Commissioner to fix the fair rent in respect of the property. The Execution Court is bound by the decree passed by the trial Court and it cannot go beyond the decree passed by the trial Court. Therefore, the Execution Court cannot fix the fair rent on its own and execute the same. The order passed by the Execution Court is erroneous and is liable to be set aside.

¶24

5.In the absence of any provision under the Civil Procedure Code for fixing the fair rent by the Execution Court, the Execution Court had erroneously appointed an Advocate Commissioner to fix the fair rent in respect of the property. The fair and decreetal order passed by the Execution Court are liable to be set aside. Accordingly, the same are set aside.

¶25

6.Since the Execution Petition in E.P.No.53 of 2012 is pending from the year 2012, I direct the Principal District Munsif, Coimbatore to dispose of the Execution Petition in E.P.No.53 of 2012, on merits and in accordance with law, within a period of two months from the date of receipt of a copy of this order.

¶26

¶27

7.With this observation, the Civil Revision Petition is allowed. No costs.

¶28

Consequently, the connected miscellaneous petition is closed.

¶29

Index : No Internet : Yes va

15.12.2015

The Principal District Munsif Court, Coimbatore.

M.DURAISWAMY,J.

C.R.P.(NPD).No.2621 of 2015 and M.P.No.1 of 2015

¶38

15.12.2015

S.Raju v. S.Balasundaram

Case brief

What is this about?

What did the court decide?

S.Raju v. S.Balasundaram

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

P.Shanmugam, Vs Mohanapriya

Sarojammal(Deceased) Vs Uma,W/O.Mathivanan

K.M.Gopal Iyer and Sons Vs Mahendrakumar

T.Girija Ammal Vs the Revenue Divisional Officer

Muthu Manicka Nadar Trust Vs Sethu Ammal

K.Premsekar Vs S.Duraisamy