Allowed

Gaddam Kotaiah v. Yatham Laxmi

Telangana HC2 Nov 2023CRP/2495/2023

Case brief

AI extract

What is this about?

High Court allowed civil revision petition setting aside trial court order appointing an advocate commissioner to fix boundaries in an execution petition, holding that such appointment was unnecessary as a report from the original suit was already on record.

What did the court decide?

Impugned order of the trial Court dated 26.06.2023 appointing an advocate commissioner is set aside. No order as to costs.

Gaddam Kotaiah Vs Yatham Laxmi — Execution and Attachment | Telangana HC (2023)

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[³²⁰⁸ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY,THE SECOND DAY OF NOVEMBER TWO THOUSAND AND TWENW THREE

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PRESENT

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THE HONOURABLE SMT JUSTICE P.SREE SUDHA

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CIVIL REVISION PETITION NO:2495 OF 2023

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Petition Under Section 115 of Civil Procedure Code against the Order dated 261OG12023 in E.A.No.28 of 2018 in E.P No.23 of 2018 in O.S.No.146 of 2010 on the file of the Court of the Principal Junior Civil Judge at Kodad.

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Between:

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Gaddam Kotaiah, S/o Late Roshaiah, Age. 60 Years, Occ. Agriculture, Rl/o. Ganapavaram Village, Kodad Mandal, Suryapet District.

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lnti Srinu, S/o Suraiah, Age. 35 Years, Occ. Agriculture, R|/o. Ganapavaram Village, Kodad Mandal, Suryapet District.

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Gaddam Suraiah,, (Died per L.R-Respondent No.4) S/o Late Seethaiah, Age.60 Years, Occ. Agriculture, Ri/o. Ganapavaram Village, Kodad Mandal, Suryapet District.

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Gaddam Samatha, Adopted daughter of Late Gaddam Suraiah , Age. 33 years, Software Engineer, Rl/o H.No.6-1 -1 32l54lc-3, Kakatiya Apartments, Skandagiri, Secunderabad, Hyderabad.

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(lmpleaded as per orders, dated 21-10-2022 passed in E.A.No.13 of 2022 and represented by her GPA holder and natural father, Kuntigoda Mattampalli Narasimham,as per orders, dated 29{8-2022 in^passed in E.A.No.11 and E.A.No.12 of 2022

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... PETITIONER/ RESPONDENTS/ JUDGMENT DEBTORS/DEFENDANTS

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AND

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Yatham Laxmi, Wo Veeraswamy, Age. 45^years, Occ. Agriculture,^FUo Ganapavaram Village, Kodad Mandal, Suryapet District.

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...RESPONDENT/PETITIONER/DECREE HOLDER/PLAINTIFF

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lA NO: 1 OF 2023

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Petition under Section 151 CPC^praying that in the circumstances statedⁱⁿ the affidavit filed in support of the petition, the High Court may be^pleased to Stay all the further proceedings in the Execution Petition in E.P.No.23 of 2018ⁱⁿ

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O.S.No.146 of 2010 on the file of Principal Junior Civil Judge at Kodad, pending disposal of the above Civil Revision Petition.

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Counsel for the Petitioners :SRl. SHAIK MADAR

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Counsel forthe Respondent : ...

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The Court made the following: ORDER

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THE HONOURABLE^SMT IUSTICE^P.SREESUDHA C.R.P.N o.2495^{of 2023}

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ORDER:

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This Civil Revision^{Petitionis filed against the order of} the Principal ]unior^Civil ludge,^{Kodad, dated 26'06'2023'} allowing E.A.No.28 of^{2018 in E.P'No'23 of 2018 in} O.S.No.146 of^{2010 filed by the plaintiff/DecreeHolder'} who is the respondent^{herein, under Order XXVI Rule 9} C.P.C., seeking^{to appoint an advocate commissionerto note} down the violation^{of the decree passedin the aforesaid suit} and to fix boundaries^{to the suit schedule ' Baata' (passage)'}

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2 Heard both sides^{and perused the materialavailable} on record

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The respondent/plaintiff^{fited the above suit being} O.S.No.146 of^{2010 for perpetualiniunction restraining the} defendants and^{their men from interferingwith her peaceful} possession^{and enioyment of the suit scheduleproperty by} using 'Baata',^{which is teadingfrom Ganapavaramto}

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Kapugallu donka vagu bund. During the pendency of the suit, an advocate commissioner was appointed by the trial Court to note down the physical feafures of the suit property along with 'Baata' and considering the report of the advocate commissioner and the objections raised by other side, thc- trial Court decreed said suit vide judgment dated 1 3.11.2017. Thereafter, the respondent/plaintiff filed E.P.No.23 of 2018 seeking to send revision petitioners/defendants 1 to 3 to civil prison for wilful disobeclicnce of the said decree of perpetual injunction. During the pendency of the said E.p., the respondent herein filed E.A.No.28 of 2078 seeking to an appoint advocate commissioner to note down the violation of the decree by the revision petitioners 1 to 3/J.Drs. and also to fix the boundaries to the suit schedule^,Baata,. The trial Court by docket order clated 07.04.2022 allowed the said application by appointing an advocate commissioner to note down the phl.sical features of the suit schedule property. Aggrieved

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by the same, revision petitioners 1 and^{2/j.Drs.filed} C.R.P.No.1247 of 2022 and this Court by^orderdated 01..07.2022 disposed of the said revision^{petition with a} direction to the trial Court to pass a^{reasonedorderfor} appointing or not appointing an^{advocate commissioner.} Thereafter, the trial cour! after hearing^{both sides, allowed} E.A.No.28 of 2078 filed by the respondent/D.Hr.^{by order} dated26.06.2023. Aggrieved by^{the said order, the revision} petitioners/J.Drs. again preferred the^present revrslon petition, inter alia, contending that^{the trial Court oughtto} have dismissed the petition holding^{that it is not possible to} measure the schedule property and its^{'Baata' without the} help of Tippan and Field Measurement^{Bookbecause the} sub-division numbers and extents^{will be mentioned} therein. The trial Court^{erred in comingto the conclusion} that no prejudice would be caused^{to the revision} petitioners if an advocate^{commissioneris appointed as} prayed for by the respondent^{herein. The claim of the}

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respondent/D.Flr. is not at all maintainable since the prayer in E.A.No.28 of 2018 is parallel to that of the main E.P.No.23 of 2023. Further, the respondent herein is trying to prove her case through the Court process by gathering evidence without adducing substantial evidence in E.P. The trial Court ought to have held that it is not possible to compare the earlier commissioner's report with the report to be submitted by the second advocate commissioner because there were no measurements in the earlier commissioner's report. Thercfore, he requested the Court to set aside the impugned order of the trial Court.

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No doubt, the Court ma)r issue commission only if it thinks fit to direct such an investigation and to report thereon. But, tn this case, it is an admitted fact that Commissioner was already appointed in the Original suit and a report was also filed. Already suit was decreed by the trial Court on merits ancl E.P. was filed for execution of the

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said decree and as such, there is no requirement to appoint

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an advocate commissioner again. However, the trial Court allowed the application without appreciating the facts properly. Therefore, this Court is of the view that it is just and reasonable to set aside the impugned order of the trial Court

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5 Accordingly, the C.R.P. is allowed by setting asicle the impugned order dated 26.06.2023, passed by the trial Court in E.A.No.28 of 2018 in E.P.No.23 of 2018 in O.S.No.146 of

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There shall be no order as to costs.

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Miscellaneous petitions, if any, pending shall stand closed

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Sd/. K.VENKAIAH ASSISTANT R GISTRAR //TRUE COPY//

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SECTION FICER

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To,

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The Principal Junior Civil Judge at Kodad.

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?. 9n"^{CC to SRt.SHATK MADA-R,} nOvocate tOpUCl 3. Two CD Copies DL NS

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HIGH COURT PSS,J DATED:0211'112023

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ORDER CRP.No.2495 of 2023

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E S T4 I e
a
c 1 5 D EnLr 7023 o
+
D S P41 C

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ALLOWING THE CRP @^dd 9n,llulo

Gaddam Kotaiah v. Yatham Laxmi

Case brief

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Gaddam Kotaiah v. Yatham Laxmi

Case brief

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