Prasenjit Mandal, J. - (1.) CHALLENGE is to the Order dated March 1, 2011 passed by the learned District Judge, Hooghly in Civil Revision No.69 of 2010 thereby dismissing a revisional application being Civil Revision No.69 of 2010 arising out of the Order No.45 dated July 27, 2010 passed by the learned Civil Judge (Junior Division), Additional Court, Chandannagore in Misc. Case No.4 of 2010 arising out of Title Execution Case No.7 of 2007.
(2.) THE short fact is that the petitioner is the judgment debtor of the above mentioned execution case. THE predecessor-in2 interest of decree-holder / opposite party herein filed a suit being Title Suit No.9 of 1995 before the learned Civil Judge (Junior Division), 1st Court, Chandannagore against the petitioner for recovery of possession of the premises in suit by evicting a licensee. THE petitioner also filed a title suit being Title Suit No.180 of 1994 against the opposite party herein before the learned Civil Judge (Junior Division), 1st Court, Chandannagore for declaration of his tenancy right over the selfsame premises in suit. THE two suits were subsequently renumbered and tried together. THE matter went up to the Honble High Court, that is, the disposal by the Trial Court, First Appellate Court and the Second Appellate Court. In all stages, the judgment debtor lost and the suit filed by the predecessor-in-interest of the decreeholder was confirmed up to the Honble High Court in the second appeal. THEreafter, the decree-holder / opposite party herein instituted the aforesaid execution case and the same is pending for execution. In that execution case, the petitioner filed an application under Section 47 of the C.P.C. and the said application under Section 47 of the C.P.C. was converted into the Misc. Case No.4 of 2010. While the misc. case was pending for hearing, the petitioner filed an application under Order 26 Rule 9 of the C.P.C. and that application, upon due consideration, was rejected on contest, but without cost by the learned Executive Court by the Order No.45 and he fixed the next date for hearing of the misc. case under Section 47 of the C.P.C. Being aggrieved, the petitioner preferred a civil revision being C.O. No.69 of 2010 before the learned District Judge, Hooghly and that civil revision was dismissed on contests. Being aggrieved, this application has been preferred by the judgment debtor. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the above facts are not in dispute at all. The question is, therefore, whether the learned Executing Court and then, the revisional court were justified in not entertaining the prayer for local investigation as prayed for by the petitioner. For convenience, the points for local investigation as sought for as appearing in the application for the said purpose as Annexure A to the application are quoted below:- 1) To visit the suit holding and to draw a case (sic) (sketch) map showing the position of the suit premises as well as the northern portion in possession of the Petitioner and also its surroundings. 2) To report about the extent of the premises in possession of the Petitioner and to report whether within the said portion, there is shed, factory etc. 3) To report about the other local features to which the attention of the Ld. Commissioner will be drawn from the side of the Petitioner. Thus, I find that out of the three points, the point no.1 is the main purpose for determination by appointment of a Survey Passed Commissioner. As indicated above, both the parties filed two suits against each other over the selfsame property and they fought the matter up to the Honble High Court via first appeal and so, the parties were quite aware over the extent of the suit premises over which they are fighting each other.
(3.) MR. Ashit Baran Routh, learned Advocate appearing on behalf of the petitioner has submitted that if the extent of the area of the property to be recovered by executing a writ of possession is not determined, what property will be delivered at the time of execution of the writ of delivery of possession. The northern boundary of the suit premises has not been determined as yet. In support of his contention, he has referred to the decision of P.N. Kurian v. Thulasidas reported in AIR 2003 Kerala 288 and thus, he submits that the appointment of a Commissioner may be allowed for survey even at the execution stage. With due respect to MR. Routh, I hold that this decision is not applicable in the instant case, inasmuch as the said decision relates to a decree passed ex parte and as such, the steps for measuring out Item No.2 and for delivery of possession of the same to the decree-holder with the help of a Surveyor and also for removal of the wall at the defendants cost should be allowed. The present situation is completely different from the one referred to in the said decision. So, the said decision will not be applicable. Mr. Routh has also referred to the decision of Haryana Waqf Board v. Shanti Sarup and ors. reported in (2008) 8 SCC 671 and thus, he submits that the Commission for local investigation may even be allowed in second appeal and so, the appointment of a Surveyor may be done at any stage. With due respect to Mr. Routh, I am of the view that this decision is not also applicable. The appeal is not pending. It is at the stage of execution, that is, after completion of the second appeal.;