Judgment:
ORDER
L. Narasimha Reddy, J.
1. Petitioner filed O.S. No. 55 of 1990, in the Court of Principal Junior Civil Judge, Vizianagaram, against the respondents, for the relief of recovery of possession, to an extent of 6 inches x 14 feet of land, and for mandatory injunction for removal of the slabs in 1st and 2nd floors with the same measurement; overlapping into the property of the petitioner. The suit was decreed ex parte on 28-4-1995. After the decree became final, the petitioner filed E.P. No. 65 of 2002. Since there was some resistance by the respondents, he filed E.A. No. 278 of 2002, for removal of obstruction. At that stage, the respondents filed E.A. No. 501 of 2003, with a prayer to appoint a Commissioner, to note the physical features, on the site. It was opposed by the petitioner, and the Executing Court allowed the E.A., through order dated 12-9-2003. Hence, this C.R.P.
2. Sri K.S.R. Murthy, learned Counsel for the petitioner, submits that the provisions of Order XXVI C.P.C., do not apply to the execution proceedings, and places reliance upon a judgment of this Court in B. Narasappa v. B. Govindappa : 1992(1)ALT48 . He contends that even otherwise, there was no basis for appointment of Commissioner, and such a step would amount to nullifying the decree and enabling the Executing Court to undertake fresh adjudication into the matter, on merits.
3. Sri G. Ram Gopal, learned Counsel for the respondents, on the other hand, submits that the provisions of Order XXVI CPC are specifically made applicable to the execution proceedings also, by adding Rule 18-A, and that the same was taken into account by this Court in Chakka Ranga Rao v. Molla Mustari Banu : 2006(5)ALD838 . On merits, the learned Counsel submits that there is serious dispute, as to the nature of so-called encroachment, and the measures to be taken by an Advocate Commissioner, would be helpful to the executing Court, in enforcing the decree.
4. The ex parte decree passed in favour of the petitioner became final, after as many as three applications filed in a series were dismissed for default. The decree is for recovery of the strip of land referred to above, as well as for removal of the portion of the slab, with the same measurements. During the course of execution, the respondents offered resistance. That prompted the petitioner to file an application for necessary, orders for removal of obstructions. Initially, an order was passed, and thereafter, it was set aside, at the instance of the respondents. E.A. No. 501 of 2003 was filed by the respondents, for appointment of the Commissioner, and the executing Court acceded to their request. So far as the first objection raised by the petitioner, as to the applicability of the provisions of Order XXVI C.P.C. to execution proceedings, is concerned, Rule 18-A of Order XXVI C.P.C., makes it amply clear that appointment of Commissioner is permissible in execution proceedings also. In B. Narasappa's, case (supra), this Court held that Order XXVI Rule 9 C.P.C., does not apply to execution proceedings. Reference was made to Section 141 C.P.C., for this purpose. In this regard, it needs to be observed that Section 141 makes the procedure under the Code applicable to miscellaneous proceedings also, and in the explanation, the only set of proceedings that are excluded from its purview, are those under Article 226 of the Constitution of India. There is no indication to the effect that the procedure in the C.P.C., does not apply to execution proceedings. In fact, it would be contradiction in terms. The slight doubt that may linger, in this regard, stands clarified with Rule 18-A of Order XXVI C.P.C., which reads as under:
Application of Order to execution proceedings:- The provisions of this order shall apply, so far as may be, to proceedings in execution of a decree or order.
It does not appear that the attention of this Court was drawn to the said proceedings, when it was decided in B. Narasappa's case (supra). In view of the specific provision referred to above, the said order deserves to be treated as per incuriam. Further, in Chakka Ranga Rao's case (supra), this Court took note of Rule 18-A of Order XXVI of C.P.C., and held that it is permissible in execution proceedings also, to appoint a Commissioner.
5. The second aspect is about the justification in appointment of a Commissioner. The decree in the instant case is for recovery of possession. The property, which is to be recovered, and the purport of mandatory injunction is clearly described in the decree itself. The respondents intend to canvas before the executing Court that the petitioner is not entitled to recover the possession of any land, and that the roof of the 1st and 2nd floors of their building did not project into the property of the petitioner. Appointment of Commissioner was sought to undertake verification, in this regard. The trial Court expressed the view that the report submitted by the Commissioner would be helpful in arriving at a conclusion.
6. Once the decree passed in favour of the petitioner has become final, it is not at all open to the respondent, or to the executing Court, to doubt its correctness or to modify its purport. If any property other than the one specified in the schedule is sought to be proceeded against, the respondents can certainly put forward their grievance, and it shall always be competent for the executing Court, to adjudicate the same. The appointment of a Commissioner, in matters of this nature, would amount to reopening the entire issue, and may even lead to a situation of annulling the decree, as a whole.
7. For the foregoing reasons, the civil revision petition is allowed, and the order under revision is set aside. There shall be no order as to costs.