Dismissed

Sivaprakash v. K.K.Natchimuthugounder

Madras HC13 Feb 2019CRP/466/2019

Case brief

AI extract

What is this about?

This High Court dismissed a civil revision petition challenging the lower court's rejection of an application to appoint an Advocate Commissioner. The court held it is well-established that a commissioner cannot substitute the finding of actual possession on the property in partition execution disputes.

What did the court decide?

Civil Revision Petition dismissed; no costs; connected Civil Miscellaneous Petition closed.

Sivaprakash Vs K.K.Natchimuthugounder — Partition | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED :13.02.2019

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CORAM

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THE HONOURABLE Ms. JUSTICE P.T. ASHA

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C.R.P.(NPD).No.466 of 2019
and
C.M.P.No.3105 of 2019
1.Sivaprakash
2.N.Balakrishnan ... Petitioners
-vs-
1.K.K.NatchimuthuGounder
2.N.Kandasamy
3.N.M.PerumalGounder
4.N.R.Natarajan ... Respondents

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PRAYER:

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Civil Revision Petition filed under Section 115 of Code of Civil Procedure, against the Order passed in E.A.No.79 of 2018 in E.A.No.118 of 2016 in E.P.No.132 of 2015 in O.S.No.99 of 2011 on the file of the Subordinate Judge, Gobichettipalayam.

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For Petitioners : Mr.V.P.K.Gowtham

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ORDER

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The Revision Petitioners/3^rd party Objectors have filed a claim

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application in E.A.No.118 of 2016 in E.P.No.132 of 2015 in O.S.No.99 of 2011. In the said claim application, they have filed an application in E.A.No.79 fo 2018 to appoint an Advocate

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Commissioner to note down the physicial features of the property in

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http://www.judis.nic.in question.

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In the affidavit filed in support of the application, the Revision Petitioners have stated that the respondents 1 and 2 are the Decree Holders and respondents 3 and 4 are the Judgment Debtors in O.S.No.99 of 2011. The Suit was filed for partition and separate possession of the property in question and a final decree was passed on 31.03.2015, allotting specific portions of the suit property to the Decree Holders and Judgment Debtors.

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Thereafter, the Decree Holders filed an Execution Application in E.A.No.132 of 2015 for taking possession of the shares allotted to them. When they proceeded to take possession of the property allotted to them, there was an objection raised by the revision petitioners/objectors and thereafter, the Revision Petitioners/Objectors have filed a claim application under Order 21 Rule 97 and 99 of the Code of Civil Procedure objecting delivery of possession to an extent of 15 cents in E.A.No.118 of 2016.

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Revision Petitioners/Objectors have taken out the impugned application on the ground that they were in possession of the property in question and constructed houses and enjoying the same by getting electricity service connection and in fact, the Revision http://www.judis.nic.in

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Petitioners are seeking to appoint an Advocate Commissioner to note down as to who is in possession of the property in question.

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It is a well established rule of law that an Advocate Commissioner cannot be used as a substitute for finding out as to who is in actual possession of the suit property. The lower Court has rightly rejected the Application in E.A.No.79 of 2018 in E.A.No.118 of 2016 in E.P.No.132 of 2015 in O.S.No.99 of 2011.

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Therfore, I do not find any infirmity in the order passed in E.A.No.79 of 2018 in E.A.No.118 of 2016 in E.P.No.132 of 2015 in O.S.No.99 of 2011.

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In the result, the Civil Revision Petition stands dismissed. No costs. Consequently, the connected Civil Miscellaneous Petition is also closed.

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13.02.2019

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tsg Index: Yes/No Internet : Yes / No Speaking/non-speaking order

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To The Subordinate Judge, http://www.judis.nic.in Gobichettipalayam.

P.T.ASHA.J.,

tsg

C.R.P.(NPD).No.466 of 2019
and
C.M.P.No.3105 of 2019

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13.02.2019

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http://www.judis.nic.in

Sivaprakash v. K.K.Natchimuthugounder

Case brief

What is this about?

What did the court decide?

Sivaprakash v. K.K.Natchimuthugounder

Case brief

What is this about?

What did the court decide?

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