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Oli Mohammed v. Jahaber Nachiar - CRP.NPD.1204 of 2007  RD-TN 2290 (12 July 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12-7-2007
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.R.P.NPD No.1204 of 2007
MP No.1 of 2007
Oli Mohammed .. Petitioner vs
Jahaber Nachiar .. Respondent Civil revision petition is preferred under Sec.115 of the Code of Civil procedure against the fair and decreetal order of the District Munsif, Nagapattinam, dated 10.4.2007 made in E.P.No.170/2001 in O.S.No.241/93. For Petitioner : Mr.S.Sounthar For Respondent : Mr.R.Balaji ORDER
An order of delivery in EP No.170 of 2001 in O.S.No.241/93 a suit for recovery of possession, by the District Munsif, Nagapattinam, is the subject matter of challenge in this revision.
2.The Court heard the learned Counsel on either side.
3.It is not in controversy that after the passing of the decree, the decree holder, who is the respondent herein, originally filed E.P.No.3/99 for taking delivery of possession. The Court Amin who went to the spot on the direction of the Court, could not deliver the property and the warrant was returned. He could not identify the property since the four boundaries and the survey number did not tally with the warrant handed over to him pursuant to the decree. Thereafter, the lower Court closed the earlier E.P.No.3/99 stating that the delivery could not be effected, and however, liberty was given to the respondent/decree holder to take steps for necessary amendment and file a fresh E.P. Subsequently, the instant E.P.No.170/2001 was filed. A counter was also filed stating that neither there was amendment, nor the property could be properly identified. Even then, the lower Court passed an order of delivery, which is being challenged in this revision.
4.The learned Counsel for the petitioner reiterated the contentions put forth before the Court below, that in the instant case while there was a liberty given to the respondent/decree holder to take steps for amendment, she could not do so; but, the E.P. has been filed stating that liberty was given to file a fresh EP, but without following the other part of the order; that even now, the property could not be either identified or delivered, and under the circumstances, the lower Court should not have ordered delivery.
5.Countering the above contentions, it is contended by the learned Counsel for the respondent that in the instant case, delivery could be ordered since the boundaries and survey numbers are clearly mentioned in the present E.P. which are in accordance with the Commissioner's report filed in the original suit; that under the circumstances, there was no impediment in ordering delivery, and hence, the order of the lower Court has got to be sustained.
6.After careful consideration of the rival submissions made, this Court is of the considered opinion that the order of the lower Court has got to be set aside without any hesitation whatsoever. Needless to say, in a given case for delivery of possession, the property which is found in the decree, has got to be delivered. In the instant case, originally, E.P.No.3/99 was laid. As per the direction of the Court, the Court Amin went to the spot, and he could not deliver the property, since the property as per the description of property in the decree, could not be identified, and hence, he returned the warrant. In such circumstances, the said E.P. was closed with the liberty to the respondent/decree holder to take steps for the proper amendment and file a fresh E.P. It is true that fresh EP has been filed; but, no steps have been taken for amendment. The respondent/decree holder, while filing the fresh E.P.No.170 of 2001, has described the property as found in the original Commissioner's report and plan which were marked as Exs.C1 and C2 respectively. It is true that there was an Advocate Commissioner appointed by the Court for the purpose of inspection of the property, and he has also filed a report. But, it is pertinent to point out that the plan and report of the Commissioner, marked as Exs.C1 and C2 respectively, were not part and parcel of the decree. The original description of property given in the plaint, even then appeared in the decree. While on the earlier occasion, the Court Amin went to the place, he could not identify the property. Now, the respondent without seeking amendment of the decree in respect of the description of property, has filed the E.P. giving the description as found in the Commissioner's report. So long as the plan and report of the Commissioner were not found as part and parcel of the decree, the same cannot be given effect to. Hence, the order of the lower Court is set aside. The respondent/decree holder is given liberty to take steps for amendment of the decree so as to enable him to get delivery of possession as one decreed earlier in the suit.
7.Accordingly, this civil revision petition is allowed. No costs. Consequently, connected MP is closed. nsv/
The District Munsif
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