( 1 ) THIS Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter called cpc ) is filed against the interlocutory order dated 20-6-2000 in LA. No. 60 of 2000 in A. S. No. 55 of 1996.

( 2 ) THE petitioner is the third respondent- third defendant in A. S. No. 55 of 1996 on the file of the Court of Senior Civil Judge, proddutur. The first respondent filed a suit for declaration of title and permanent injunction. The suit being O. S. No. 74 of 1993 was tried along with two other suits and a common judgment was delivered dismissing the said suit. At the trial stage, an Advocate-Commissioner was appointed to measure the suit schedule land, fix the boundary stones and fix the dividing line between the property of the first respondent and the petitioner. The Advocate- commissioner was also examined as P. W. 3.

( 3 ) AGAINST the judgment and decree in o. S. No. 74 of 1993, the first respondent- plaintiff filed A. S. No. 55 of 1996. He filed la. No. 60 of 2000 for appointment of advocate-Commissioner for the purpose of verifying measurements taken by the surveyor who assisted P. W. 3 in taking the measurements. In LA. No. 60 of 2000 he, inter alia, averred that the Advocate- commissioner appointed by the trial Court who was examined as P. W. 3 stated that the surveyor has not taken the measurements of the suit schedule property nor prepared the plan Ex. C-7 in the presence of P. W. 3. He also alleged that the evidence of P. W. 3 is not clear whether the measurements taken by Surveyor as well as P. W. 3 are same. It was also stated that P. W. 3, Advocate- commissioner, had since been appointed as a Sub-Inspector of Police and as he cannot be asked to reverify the measurements in the presence of the first respondent as well as the Surveyor, a new Commissioner must be appointed.

( 4 ) THE petitioner herein opposed the application contending that second commissioner cannot be appointed unless the Court scraps the first Commissioner s report. By the impugned order the trial court observed that the first respondent only sought for appointment of commissioner for limited purpose of verifying measurements already taken by the Surveyor this time in the presence of the commissioner. The lower Court also recorded a finding that admittedly the surveyor did not take the measurements and prepared the plan in the presence of p. W. 3. Therefore, the lower Court appointed Advocate-Commissioner to verify the measurements taken by the surveyor with the assistance of the town surveyor and Mandal Surveyor.

( 5 ) SRI O. Manohar Reddy, learned counsel representing Sri V. Laxmi Reddy, learned Counsel for the petitioner, submits that under the provisions of Order XXVI rule 9 CPC second Commissioner to make a local investigation cannot be appointed unless the report of the first Commissioner is rejected or ignored. He also submits that the impugned order has resulted in failure of justice to the petitioner herein.

( 6 ) SECTION 96 CPC lays down that save where otherwise expressly provided in the body of this Code an appeal shall lie from every decree passed by any Court exercising original jurisdiction of the Court authorised to hear appeals from the decisions of such Court. In view of section 121 CPC, which says that the Rules in the first schedule (which consists of order I to Order LI) shall have effect as if enacted in the body of this Code, it cannot be said that the appellate Court has no power to appoint a Commissioner while considering the appeal against a decree. Therefore, the impugned order cannot be said to suffer from exercise of jurisdiction not vested in the appellate Court. Indeed, the appeal is a continuation of suit and while considering the appeal in accordance with the provisions of Order XLI CPC, the appellate Court cannot ignore procedure laid down in CPC in the main body of the code as well as the Rules contained in schedule I.

( 7 ) ORDER XXVI Rule 9 CPC empowers the Court to issue a commi