CRP/5775/2015 of Md. Idris Vs Smt. Ameena Bhai on 31 December 2015

ORDER:

The petitioners herein are Defendants 2 and 5 in O.S.No.5of 2001 on the file of the learned VII Additional District Judge,Mahabubnagar. Respondents 1 to 4 herein filed the aforesaidsuit for partition of plaint ‘A’ and ’B’ schedule properties. Apreliminary decree was passed in respect of ‘B’ scheduleproperty on 8.1.2007. An Advocate Commissioner wasappointed in I.A.No.53 of 2009 for measurement of ‘B’ schedule property and allotment of individual shares by order dated30.12.2010. In respect of ‘A’ schedule property, A.S.No.227 of2007 was filed before this Court and the same is pendingadjudication. The Advocate Commissioner so appointed on30.12.2010 filed his report dated 14.10.2012 expressing hisinability to demarcate and allot individual shares as per decree.Pursuant to the same, the respondents 1 to 4/plaintiffs filed Memo dated 29.4.2015 before the Court below to redirect theAdvocate Commissioner to execute the warrant by givingnecessary directions or alternatively appoint another AdvocateCommissioner to execute the warrant. In those circumstances,t he Executing Court passed the order under revision dated14.10.2015 appointing another Advocate Commissioner toexecute the warrant. Challenging the same, the present CivilRevision Petition is filed.

The learned Counsel for the petitioners submits that theCourt below erred in appointing another AdvocateCommissioner without setting aside the report submitted by theearlier Advocate Commissioner.

The relevant portion of order passed by the Court belowreads as follows:

“ Admittedly petitioners filed application forfinal decree application in terms of the preliminary decreepassed in their favour in respect of ‘B’ scheduleproperties. They also preferred appeal against thepreliminary decree passed in their favour only in respectof ‘B’ schedule negativing the relief in respect of ‘A’schedule property and it is pending. Respondents hereinhave not filed any cross appeal questioning thepreliminary decree passed in favour of petitioners inrespect of ‘B’ schedule property. Final decreeproceedings are not stayed by the appellate Court. In thecircumstances as admittedly the Commissionerappointed for division of the properties in terms ofpreliminary decree returned the warrant expressing hisinability to execute the warrant for the reason that theextents are more than the extents shown in schedulesand there are some existing structures not shown in theschedules final decree proceedings are stalled. Thisapplication is filed in the year 2009 for final decree.Though six years have been elapsed petitioners/plaintiffshaving obtained preliminary decree could not get any relief. Objection raised by the respondents that only onefinal decree is to be passed and petitioners are barred toobtain number of final decrees is not tenable. Question ofanother final decree arises only in the event of theirsuccess in the appeal preferred by them in respect of‘A’ schedule properties. Till such time no such possibilityof passing number of final decrees. In the abovecircumstances instead of keeping the final decreeproceedings filed in cold storage without any progress itis a fit case to appoint a Senior Advocate Commissionerto make division of the properties in terms of thepreliminary decrees with the assistance of licencedsurveyor or the Government Surveyor instead of re-directing the same Advocate Commissioner whoexpressed his inability to execute the warrant thoughthere is no ambiguity and no dispute with regard to theidentity of the properties.”

The Court below noticed that the earlier AdvocateCommissioner expressed his inability to execute the warrant forthe reason that the extents are more than the extents shown inschedules and that there are existing structures not shown inthe schedule. When another Advocate Commissioner isappointed for executing the warrant, it supersedes the warrantissued appointing earlier Advocate Commissioner. In this viewof the matter, there is no need for the petitioner to feelapprehension that the report of the earlier AdvocateCommissioner is not set aside. I do not see any valid andsubstantial reason to interfere with the order under revision.The Civil Revision Petition is dismissed. Miscellaneouspetitions pending consideration if any in the Civil RevisionPetition shall stand closed in consequence. No order as tocosts.

DATED 31.12.2015

Msnrx

--------------------------------------------------- JUSTICE A. RAMALINGESWARA RAO