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2007 DIGILAW 54 (AP)

Nemuri Lakshminarayana, S/o. late Nemuri Balarajaiah Goud v. Nemuri Prakash, S/o. Nemuri Sattaiah Goud

2007-01-18

V.V.S.RAO

body2007
ORDER:- Respondents 6 to 10 herein - plaintiffs 6 to 10 in O.S.No.9 of 1993 on the file of the Court of Principal District Judge, Ranga Reddy District; obtained preliminary decree dated 08.9.1993 for partition of suit schedule properties. In the meanwhile, plaintiffs filed I.A.No.2241 of 1993 under Order XXVI Rule 13 of Code of Civil Procedure, 1908 (CPC) for appointment of Advocate commissioner to divide suit schedule properties as per preliminary decree, to allot one such share each to plaintiffs and defendants, and to determine mesne profits. The trial Court appointed Advocate commissioner on 27.7.1994. Report was filed on 10.7.1995 dividing suit schedule property and assessing mesne profits payable by defendants to plaintiffs at Rs.715,067.75 ps. Both the parties filed objections to the report of the Advocate commissioner. After considering the same, trial Court passed orders on 09.4.1998 returning the warrant and directing Advocate commissioner to make division of Acs.0.27 guntas of land lying to the east of suit schedule house and to record the statements of tenants and other witnesses produced by the parties. Against the said orders, petitioners herein - defendants 5 and 6 preferred A.S.No.78 of 1994 before this Court. Aggrieved by the judgment of this Court in appeal, petitioners preferred Special Leave Petition in which Supreme Court observed that final decree proceedings shall continue but final decree shall not be signed without leave of Supreme Court. Complying with the orders of the trial Court, Advocate commissioner filed report on 04.9.1998 allotting house plot with appurtenant house to the plaintiffs and making certain adjustment in dividing other properties into two equal shares. Again objections were filed by both the parties. 2. After considering the objections, learned trial Judge passed orders on 06.10.1998 declaring that plaintiffs are entitled to an amount of Rs.4,47,243.50 ps., towards mesne profits with interest at 6% per annum from the date of the order till the date of payment. Aggrieved by the same plaintiffs filed C.R.P.No.5538 of 1998 whereas defendants filed C.R.P. No.27 of 1999. These two civil revision petitions were allowed on 17.2.2005 and the matter was remitted to the trial Court for fresh disposal. Aggrieved by the same plaintiffs filed C.R.P.No.5538 of 1998 whereas defendants filed C.R.P. No.27 of 1999. These two civil revision petitions were allowed on 17.2.2005 and the matter was remitted to the trial Court for fresh disposal. In obedience thereto learned District Judge again heard the matter and passed orders on 18.10.2006 approving the report of Advocate commissioner for division of suit schedule property and declaring that plaintiffs are entitled to Rs.12,81,750/- towards mesne profits with interest at 6% per annum from the date of order till the date of realisation. This is subject matter of this revision petition. 3. Learned Counsel for petitioners-defendants 5 and 6 made lengthy strenuous arguments to drive home the point that the impugned order is vitiated by material irregularities while exercising jurisdiction under Rule 18 of Order XX of CPC. According to learned Counsel there is no evidence to show that house bearing No.14-21 exclusively belongs to the mother of plaintiffs and that the trial Court erred in holding that the suit house was sold by Sulochana to Purushotham prior to filing of suit. Learned Counsel does not dispute that final decree as such has not been signed and in such event defendants 5 and 6 have right of appeal. 4. Against judgment and decree of this Court in A.S.No.78 of 1994 defendants including petitioners herein preferred a special leave petition, which is pending. They also obtained interim order to the effect that final decree proceedings shall proceed but the decree shall not be signed. For this reason learned trial Judge was very much cautious in observing that though the final decree proceedings shall continue final decree shall not be signed without leave of Supreme Court. Secondly as per Order XX Rule 7 CPC, decree prepared in accordance with judgment shall have to be signed by the Judge. Unless and until such mandatory requirement is complied with decree is not enforceable. Therefore petitioners cannot be said to have any grievance at this stage. Furthermore final decree is appealable under Section 96 read with Order XLI CPC. If at this point of time any finding is recorded regarding right of defendants or the obligation of plaintiffs or vice versa, it would certainly amount to rendering such remedy of appeal ineffective. Therefore petitioners cannot be said to have any grievance at this stage. Furthermore final decree is appealable under Section 96 read with Order XLI CPC. If at this point of time any finding is recorded regarding right of defendants or the obligation of plaintiffs or vice versa, it would certainly amount to rendering such remedy of appeal ineffective. While exercising power under Article 227 of Constitution of India, this Court cannot render pending proceedings ineffective or deny parties to the proceedings fairness in the proceedings. Therefore this Court is not inclined to go into questions raised at this stage. It shall be open to petitioners-defendants 5 and 6 and all other defendants or all other aggrieved parties to agitate the question as and when final decree is signed by learned trial Judge. 5. The civil revision petition, with the above observations, is accordingly dismissed.