Remanded

Banumathi v. The Managing Trustee

Madras HC11 Dec 2024CRP(MD)/760/2024

Case brief

AI extract

What is this about?

In this civil revision petition under Section 115 CPC, the High Court set aside the execution court's order dismissing the petitioner's petition for appointment of a commissioner to inspect property. The court directed the restoration of the appeal file for commissioner appointment for the limited purpose of verifying hut possession, ordering the petitioner to pay Rs. 10,000 costs for delay.

What did the court decide?

Set aside the impugned order; direct the execution court to restore the appeal and appoint a commissioner to verify hut possession; order the petitioner to pay Rs. 10,000 costs to the decree holder.

Banumathi Vs The Managing Trustee — Execution and Attachment | Madras HC (2024)

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C.R.P(MD)No.760 of 2024

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 11.12.2024

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CORAM :

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THE HONOURABLE Mr. JUSTICE G.ILANGOVAN

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C.R.P(MD)No.760 of 2024 and C.M.P(MD)No.4139 of 2024

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Banumathi

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... Revision Petitioner / Petitioner

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The Managing Trustee, Shri Sundararaja Perumal Devasthanam, Paramakudi Town, Ramanathapuram District. ... Respondent / Respondent

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Prayer : This Civil Revision Petition is filed under Section 115 of C.P.C., to allow this revision petition, set aside the fair order and decreetal order dated 08.12.2023 in E.A.No.1 of 2023 in E.A.No.6 of 2022 in E.P.No.10 of 2020 in O.S.No.29 of 1996 of the District Munsif Court, Paramakudi and allow the same.

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For Petitioner : Mr.V.Meenakshi Sundaram

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For Respondent : Mr.S.Srinivasa Ragavan

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.760 of 2024

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ORDER

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This Civil Revision Petition is filed to allow this revision petition, set aside the fair order and decreetal order dated 08.12.2023 in E.A.No.1 of 2023 in E.A.No.6 of 2022 in E.P.No.10 of 2020 in O.S.No.29 of 1996 of the District Munsif Court, Paramakudi and allow the same.

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The facts in brief is that the suit in O.S.No.29 of 1996 was decreed as prayed for with cost and the judgment debtor was directed to remove the superstructure and handover the vacant possession to the decree holder. Against the judgment and decree of the trial Court, A.S.No.71 of 2000 was preferred before the appellate Court. The appeal came to be dismissed. Against which Second Appeal in S.A(MD)No.417 of 2018 was preferred before this Court which was also came to be dismissed by order dated 20.01.2020. Delivery was ordered and at that time, this Revision Petitioner claiming himself to be an obstructor filed a petition under Order XXVI, Rule 6 under Section 151 of C.P.C., to appoint an advocate commissioner to inspect the property, stating that she purchased the property through unregistered sale deed dated

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.760 of 2024

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11.07.1991 and after purchase, constructed a tiled house. For that purpose only, she filed the obstruction petition. Whether tiled house is available in the property or not must be ascertained. For that purpose commissioner petition is filed.

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That was resisted by the respondent stating that, the unregistered sale deed itself was not admitted by the execution Court in E.A.No.18 of 2022. So the petition itself is not maintainable. After hearing both sides, that came to be dismissed by the execution Court. Against which this Civil Revision Petition is preferred.

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At that time of argument, learned counsel for the revision petitioner has drawn the attention of this Court to the Commissioner's report filed in the suit. Wherein it is mentioned that at the time of inspection it was represented to him that the hut referred as '2' in the sketch belongs to the second defendant in the suit called Veerammal and the hut shown as '10' belonging to one Sathish who is the third party to the suit. On the East of hut No.10, there is a vacant site, where some remnants of a burnt out huts were found. Later, a new hut was put up.

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.760 of 2024

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This is according to the revision petitioner belongs to her. So it must be ascertained.

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No doubt that the attempt made by the revision petitioner to mark the unregistered sale deed did not succeed. On the basis of the unregistered sale deed, the revision petitioner cannot claim any right or title over the property. Whether she is in possession or not, is a point to be considered by the execution Court and if the possession is not traceable to title, then as mentioned by the respondent herein, her obstruction got to be removed. So appointment of commissioner will benefit both.

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On the sole ground, I am of the view that the order passed by the learned District Munsif, Paramakudi dated 08.12.2023 in E.A.No.1 of 2023 in E.A.No.6 of 2022 in E.P.No.10 of 2020 in O.S.No.29 of 1996, is liable to be set aside. Accordingly, it is set aside, ofcourse for the delay caused in prosecuting the matter must be compensated. Therefore, the revision petitioner is directed to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) to the decree holder within a period of 15 days from the

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.760 of 2024

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date of receipt of a copy of this order. On payment of cost, the execution Court namely the learned District Munsif, Paramakudi, is directed to restore E.A.No.1 of 2023 to its file and appoint a commissioner to execute the above said work. The remuneration for the Advocate Commissioner may be fixed at the discretion of the execution Court. It is made clear that the Advocate Commissioner must be appointed only for looking or finding out whether any hut is available in the decreed properties and not for any other purpose.

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With the above observation, this Civil Revision Petition stands disposed of. No costs. Consequently, connected miscellaneous petition stands closed.

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NCC :Yes/No 11.12.2024 Index :Yes/No Internet : Yes/ No

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.760 of 2024

G.ILANGOVAN, J.

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1.The District Munsif Court, Paramakudi.

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2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

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ORDER IN C.R.P(MD)No.760 of 2024 and C.M.P(MD)No.4139 of 2024

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11.12.2024

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https://www.mhc.tn.gov.in/judis

Banumathi v. The Managing Trustee

Case brief

What is this about?

What did the court decide?

Banumathi v. The Managing Trustee

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

Coram

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