Advocate Commissioner Cannot Be Appointed During Execution Proceedings To Reverse Finding Of Trial Court: Andhra Pradesh High Court

Brief Facts of the case

The petitioner had filed a suit against respondent for grant of permanent injunction restraining them from interfering with the possession of petitioner over the suit schedule property.

The case of the petitioner was accepted by the trial court as the petitioner proved is title and possession. After disposal of suit, the petitioner filed Execution Petition on the ground that the respondent was seeking to violate the orders of the Trial Court. The respondent moved Execution Appeal for appointment of advocate commissioner to note down the physical features of the property.

It was the contention of the respondent that as the petitioner was never in possession of the schedule property and as the judgment and decree was obtained by petitioner by suppressing true facts, the appointment of an advocate commissioner to inspect the schedule property by noting down the physical features and taking photographs of the same would be important for the Court of Justice.

The petitioner contended that the respondent had already filed photographs of the schedule property to prove his case and appointment of advocate commissioner is not necessary as it will protract the litigation.

The Executing Court allowed the application to appoint an advocate commissioner for a just determination of the case. Aggrieved by the said order, the petitioner has filed the civil revision petition.

Contentions of both sides

Advocate Nuthalapati Krishna Murthy, counsel for the petitioner contended that appointment of advocate commissioner at the stage of execution is effectively an application for adducing fresh evidence to overturn the judgment and decree passed by the trial Court. He contended that Executing Court cannot go behind the decree or arrive at findings which are at odds with the decree.

Advocate C. Subodh counsel for the respondent contended that there will be no harm caused to the petitioner if the advocate commissioner is appointed to note down the physical features of the property.

Court's observations

The court observed that the trial court has already decided the question of possession of the property in favour of petitioner. The finding cannot be over turned by Executing Court while passing orders in Execution Petition. Furthermore, the Executing Court has not pointed out the ambiguity which needs to be clarified before the trial court through appointment of advocate commissioner.

On the basis of the aforementioned observation, it was held that the Executing Court could not have directed the appointment of an advocate commissioner. The Civil Revision Petition was thus allowed.

Case Title: M Rama Chandraiah Versus Valleupu China Ankaiah

Citation: 2022 LiveLaw (AP) 12