( 1 ) THE revision petitioner aggrieved by the order made by the learned Senior Civil Judge, Vizianagaram dated 18-7-2003 in F. D. I. A. No. 572 of 2002 in O. S. No. 17 of 1997, had preferred the present civil revision petition under article 227 of the Constitution of India.

( 2 ) THE facts in brief are as hereunder:the revision petitioner as plaintiff filed a suit in O. S. No. 17 of 1997 on the file of the Senior Civil Judge, Vizianagaram for the relief of partition and separate possession of his 1/3rd share praying for the division of properties into three equal shares by metes and bounds. The learned Senior Civil judge, Vizianagaram had decreed the suit on 26. 4. 2002. The revision petitioner, as plaintiff aggrieved by the fact that the relief of mesne profits had not been granted, preferred A. S. No. 1991 of 2002 on the file of this Court and the same is pending disposal. In the said appeal, in C. M. P. No. 20657 of 2002, initially interim stay of passing of final decree was granted and subsequent thereto the same was vacated, the respondents herein-defendants moved an application in F. D. I. A. No. 572 of 2002 in o. S. No. 17 of 1997 under Order 20 Rule 18 of the Civil Procedure Code ( hereinafter in short referred to as "the Code" ) for passing of final decree in terms of preliminary decree and to partition the plaint schedule properties into three equal shares and put the defendants into two equal shares and the plaintiff in the third share. In view of the orders made by this Court in C. M. P. No. 20657 of 2002, dated 11. 12. 2002 the learned Senior Civil judge, Vizianagaram had appointed Sri ch. V. J. A. Prasad as Commissioner to divide the plaint schedule properties as per the terms of the preliminary decree and to file his report by 20-8-2003. The said order is questioned by the petitioner/plaintiff in the present civil revision petition.

( 3 ) SRI Subramanyam Narsu, the learned Counsel representing the petitioner/ plaintiff made the following submissions:the learned Counsel had drawn my attention to the language of Order 20 rule 18 (2) of the Code and submitted that a preliminary decree should declare the rights of several parties interested in the property. Unless a preliminary decree declares the rights of the defendants also, the defendants cannot maintain an application for passing of final decree. The learned counsel also had taken me through the respective pleadings of the parties. The stand taken by the defendants is that there was prior partition. The learned counsel in all fairness had submitted that the revision petitioner-plaintiff no doubt had preferred an appeal only in relation to the non-granting of mesne profits and this is a matter to be decided in the said appeal. The Counsel also would maintain that vacating the stay by this Court stands on different footing and now the question to be decided is, in the absence of declaration of the rights of the defendants in the preliminary decree, can such parties be permitted to maintain an application for the passing of the final decree. The learned counsel submitted that the answer to the said question should be negatived especially in the light of the clear language of Order 20 Rule 18 (2) of the Code and also a catena of decisions dealing with this question.

( 4 ) PER contra Sri Venugopal, the learned Counsel representing the respondents in the civil revision petition-defendants in the suit, submitted that in the suit O. S. No. 17 of 1997, as per the prayer, the decree was granted and there is no prayer praying for the relief of mesne profits. The learned Counsel also pointed out that in the appeal an application for grant of stay of passing of final decree was prayed for and initially interim stay was granted and subsequent thereto the same was vacated. Virtually, the petitioner/ plaintiff is making an attempt to circumvent the said order made in the aforesaid application pending appeal before this Court. The Counsel also would maintain that it is not the

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