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2025 DIGILAW 765 (AP)

Banavatha Bala v. Banavatha Nanikya

2025-06-20

RAVI NATH TILHARI

body2025
JUDGMENT : RAVI NATH TILHARI, J. Heard Sri Kochiri Raja Shekar, learned counsel for the petitioner and perused the material on record. 2. This civil revision petition under Article 227 of the Constitution of India has been filed by the defendant in O.S.No.22 of 2014 in the Court of the Civil Judge (Senior Division), Nandigama (in short ‘learned Court’). 3. The respondent is the plaintiff. The plaintiff had filed the aforesaid suit for partition of the plaint schedule property. The suit was decreed by passing a preliminary decree. The same was confirmed in A.S.No.08 of 2015 on the file of the XVI Additional District Judge’s Court, Nandigama by dismissing the appeal of the present petitioner/defendant. The petitioner’s Second Appeal No.1801 of 2018 is pending in this Court. In the second appeal, as per the submissions advanced by the petitioner’s counsel and vide the document, at page-14, interim order dated 29.07.2022 was granted, providing that “The final decree proceedings pending before the trial court may go on except passing of the final decree pending further orders.” The said interim order is said to be continuing and the second appeal, pending. 4. The plaintiff/respondent filed F.D.P.No.16 of 2019 in O.S.No.22 of 2014 under Order XXVI Rule 13 of CPC to pass final decree by appointing an Advocate-Commissioner, directing to divide the petition schedule property into two equal shares and to allow half share to the plaintiff and deliver separate possession to him in terms of the preliminary decree. 5. The defendant/petitioner filed response, and inter alia, submitted about the pendency of the second appeal and in view thereof, prayed for dismissal of FDP.No.16 of 2019 as not maintainable, submitting that those proceedings may be initiated after disposal of the second appeal. 6. The learned trial Court framed the point for determination, as to “whether the petitioner is entitled for passing of final decree in terms of the preliminary decree, as prayed for”. 7. On consideration of the submissions advanced before the learned trial Court, as also the interim order passed in the S.A.No.1801 of 2018, the learned trial Court passed the Order appointing the Advocate-Commissioner to execute the commissioner warrant with the help of the Mandal Surveyor by duly issuing prior notices to the parties and their counsel on record. The Advocate-Commissioner was directed to file the report by the date fixed, vide Order dated 06.01.2025. The Advocate-Commissioner was directed to file the report by the date fixed, vide Order dated 06.01.2025. The relevant part from para-12 of the Order of the learned trial Court reads as under: “12………However, as per the orders of the Hon’ble High Court of A.P. in S.A.1801/2018, the final decree cannot be passed, however, the other proceedings can go on. Hence, in view of the aforesaid discussion, this Court feels that the Advocate Commissioner can be appointed in order to divide and partition the petition schedule property ie.,Ac.3.42 cents in R.S.No.209 of Vedadri village, Jaggaiahpet Mandal into two equal shares and for allotment of one such share to the petitioner/plaintiff as per the preliminary decree passed in O.S.No.22/2014. Hence, Sri A. Vijaya Bhaskar, Advocate is appointed as an Advocate Commissioner, for division of the petition schedule property into two equal shares. Hence, the learned Advocate Commissioner shall execute the Commissioner Warrant with the help of Mandal Surveyor and by duly issuing prior notices to the parties and their counsel on record. The fee of the learned Advocate Commissioner is fixed at Rs.6,000/-. The learned Advocate Commissioner is directed to file his report by 06.02,2025. Issue warrant to that affect. Call on 06.02.2025.” 8. Learned counsel for the petitioner submitted that the learned trial Court has directed the Advocate-Commissioner to divide and partition the petition schedule property into two equal shares and for allotment of one such share to the petitioner/plaintiff as per the preliminary decree. In his submission, such direction amounts to passing the final decree, as the Advocate-Commissioner shall divide the property. He submitted that in the second appeal, the passing of the final decree has been stayed. In his submission, the Order of the learned trial Court amounts to partition the property and passing of the final decree by the Advocate-Commissioner. 9. I have considered the aforesaid submissions, which deserve to be rejected. From reading of the Order of the learned trial Court, it is apparent that the learned trial Court was conscious of the interim order passed in the second appeal which permitted the final decree proceedings to go on except passing of the final decree. The Order impugned is neither the final decree nor the direction issued, appointing the Advocate-Commissioner, amounts to partitioning the plaint schedule property finally between the parties. The Order impugned is neither the final decree nor the direction issued, appointing the Advocate-Commissioner, amounts to partitioning the plaint schedule property finally between the parties. The appointment of the Advocate-Commissioner for the purposes stated is only in furtherance of the proceedings for passing the final decree, but not the final decree. It is evident from the Order that after the Advocate-Commissioner executes the warrants pursuant to the direction of the learned trial Court and submits the report, the learned trial Court shall only proceed further in the final decree proceedings but shall not pass any final decree during the continuance of the interim order in the second appeal. The submission advanced by the learned counsel for the petitioner raising the apprehension that the learned trial Court shall pass the final decree after the report of the Advocate-Commissioner is received, is unfounded. The trial Court has referred and considered the interim Order passed in the second appeal and has clearly observed that the final decree cannot be passed in view of the interim order. 10. This Court does not find any substance in the submissions advanced nor any justification to interfere with the impugned Order. However, it goes without saying that the learned trial Court is bound by the interim order passed in the second appeal and shall abide by the same during its continuance i.e., that the final decree proceedings pending before the trial Court may go on except passing of the final decree pending further orders in the second appeal. 11. With the aforesaid observations, the Civil Revision Petition is dismissed. No order as to costs. Pending miscellaneous petitions, if any, shall stand closed in consequence.