CRP/319/2020 of MUNTAZ Vs SREE SIDDESWARA SWAMY TEMPLE on 30 November 2025

1. BUTTA VIJAYA BHASKER Counsel for the Respondents:

1. N PREMRAJ The Court made the following:

Being aggrieved by and dissatisfied with the order, dated 25.01.2020, passed in E.A.No.307 of 2017 in E.A.No.462 of 2017 in E.P.No.250 of 2015 in O.S.No.244 of 2009, by learned Senior Civil Judge, Adoni, instant Civil Revision Petition has been preferred.

2. In a nutshell, the Revision Petitioner, being the plaintiff, filed a suit for perpetual injunction and mandatory injunction in respect of the suit schedule property. The plaintiff sought a mandatory injunction in respect of suit B- Schedule property. The suit was decreed on contest. By such decree, the

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learned Court below has granted mandatory injunction directing removal of construction already made in the B-Schedule property shown as EPGH in plaint plan. The plaintiff thereafter filed an Execution Petition to execute the decree.

3. At that time, the present respondent No.1 being a representative and Chairman of Sree Siddeswara Swamy Temple, Holagunda, filed an application under Order XXVI Rule 9 read with Section 151 C.P.C. seeking appointment of an Advocate Commissioner to note the physical features and measure land in Survey No.390-B to an extent of Acs.7.27 cents and also the land in Survey No.397/1, with the assistance of Divisional Surveyor and to draw a sketch map of the said lands in Survey Nos.390/B and 397/1.

4. The learned Court below heard the learned counsels and allowed the said application by appointing an Advocate Commissioner. Hence, the instant Civil Revision Petition.

5. Learned counsel for the Revision Petitioner submits that the impugned order is illegal and improper. He contends that the petitioner(Temple), in the aforesaid application, was not a party to the suit. While the Grampanchayat as well as the other local persons, were aware of the suit proceedings. He further submits that the petitioner–Temple has not challenged the decree and moreover once the decree has been put into execution, the Court below cannot pass an order for identification of the suit property. He submits that there is no dispute regarding identification of the suit property more

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particularly in respect of the B-Schedule property. As the decree has not been altered, modified, or set aside by any Court, the impugned order is illegal, arbitrary, and liable to be set aside.

6. On the other hand, learned counsel appearing on behalf of respondent No.1-Temple raised an objection and submits that the learned Court below has not committed any error in passing the impugned order. He submits that the suit B-Schedule property never belonged to the plaintiff-Revision Petitioner and that it is the property of Sree Siddeswara Swamy Temple. Although the plaintiff was well aware of this fact, R-1 was not impleaded as a party to the suit. He submits that for proper execution of the decree, B-Schedule property is required to be identified. Thus, the learned Court below has rightly directed the appointment of Advocate Commissioner to identify the suit Schedule property.

7. Heard learned counsels for the parties.

8. Perused the order passed by the learned Court below.

9. I have also perused the finding of the learned Court below recorded at paragraph No.6 of the impugned order. While deciding the application under Order XXVI Rule 9 C.P.C., the learned Court below has observed that no prejudice would be caused to the respondents/plaintiff if an Advocate Commissioner is appointed, whereas if the Advocate Commissioner is not appointed, that would lead to further complications.

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10. Upon thorough perusal of the judgment and decree passed in Original Suit bearing O.S.No.244 of 2009, it appears that the plaintiff never claimed his right or title over the suit B-Schedule property. He only prayed for mandatory injunction over suit B-Schedule property as it has caused obstruction to his right to way by blocking the ingress and egress to the house of the plaintiff.

11. The learned Court below has already passed a decree in O.S.No.244 of 2009, particularly mandatory injunction in respect of suit B-Schedule property. Admittedly, Sree Siddeswara Swamy Temple was not a party to the suit nor did it file any objection or appeal against the decree. Thus, the decree passed by the Civil Court remains intact and binding.

12. At this juncture, respondent No.1 herein, being an outsider of the suit cannot file an application under Order XXVI Rule 9 C.P.C. without raising an objection to the decree. I make it clear that though respondent No.1 may have a right, title or interest over the B-Schedule property, unless and until an objection is raised or specific application is filed, challenging the decree passed by the Civil Court, respondent No.1 cannot seek identification of the suit property.

13. In my view, the learned Court below has committed an error in allowing respondent No.1 herein to file an application under Order XXVI Rule 9 C.P.C. without recording any objection or challenge to the decree from the said Temple (R-1).

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14. Under the above observations, the order passed by the learned Court below appointing an Advocate Commissioner is illegal, improper and the same is hereby set aside. The Civil Revision Petition appears to be a meritorious one and is, accordingly, allowed.

No costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.

______________________ SUBHENDU SAMANTA, J

Date: 01.12.2025. SSN