D.K.Seth, J. - (1.) Mr. M. M. Sahai, learned counsel for the petitioner contends that his client has filed an application under Order XXI, Rule 31 sub-rule (3) of the Code of Civil Procedure but instead of deciding the same, the learned trial court appointed a Survey Commission on the allegation that the Judgment debtor had demolished the wall some times in 1999. Mr. Sahal contends that in terms of sub-rule (3) unless the decree is complied with within six months from the date of Judgment, the attached property is liable to be sold. In order to decide as to whether the decree was complied with within six months, it is necessary to determine the application under Order XXI, Rule 31. sub-rule (3) of the Code before issuing commission and directing the Survey Commissioner to inspect and submit a report as to whether the wall has been demolished or not. Mr. Sahai contends that the question that the -wall was not demolished within six months can be decided on oral evidence, if in the meantime it is demolished. In my view that cannot be deciphered from the report of the Survey Commissioner if the same is still pending. If the wall is removed, in that event that can also be found from the report that the wall is removed. The compliance of the decree required the demolition of the wall. In case it Is required to be proved that the wall was removed after six months from the date of Judgment, It is open to the decree holder to prove the same through oral evidence as he may like but this does not mean that the application under Order XXI. Rule 31, sub-rule 13) of the Code has to be determined before issuing commission. It can even be decided afterwards. The Commissioner's report cannot affect in any manner the right of the decree holder, if there be any, under Order XXI, Rule 31, sub-rule (3). It would still be open to press his application under Order XXI. Rule 31. sub-rule (3) of the Code.
(2.) In this view of the matter, it does not appear that the learned executing Court had exceeded his Jurisdiction or has acted illegally or with material irregularity or has failed to exercise its Jurisdiction as has been sought to be submitted by Mr. Sahai. I am, therefore, not inclined to interfere with the order impugned.
(3.) The revision therefore, fails and is accordingly dismissed. No cost.;