Once a preliminary decree for partition is passed, the suit does not abate upon the death of any party, and appointing an advocate commissioner does not require conducting a trial.

ORDER :

1. The petitioner herein had filed O.S.No.152 of 1983 before the Additional Civil Judge (Senior Division), Tenali, for partition of the property, claimed to be joint family property. This suit was filed against two defendants. The 1^st defendant was set ex parte, even before the preliminary decree had been passed. Subsequently, a preliminary decree was passed on 22.06.1984. It may also be noted that the plaintiff, at the time of filing of the suit was a minor and was represented by his mother as next best friend.

2. The 1^st defendant had passed away and the defendants 3 & 4 came on record as the LRs of the deceased 1^st defendant. The defendants 1 to 4 filed I.A.No.758 of 2024 in OS.No.152 of 1983 for appointment of an advocate commissioner for division of the suit schedule property into three equal shares by metes and bounds and to submit a report regarding the said division and for passing of the final decree in pursuance of the preliminary decree.

3. This application was resisted, by the petitioner herein, on various grounds. About 16 grounds were raised by the petitioner. The Trial Judge, by an Order dated 02.04.2025, allowed the application appointing a learned advocate commissioner to take up the task of division of the schedule property into three equal shares etc. The Trial Judge recorded that the counter filed by the petitioner herein did not have any tenable objections.

4. Aggrieved by the said Order, dated 02.04.2025, the petitioner has approached this Court by way of the present Civil Revision Petition.

5. Sri Phani Teja Cheruvu, the learned counsel appearing for the petitioner, would reiterate the grounds raised in the counter affidavit filed by the petitioner before the Trial Court. Apart from this, the learned counsel for the petitioner would contend that the Trial Court could not have passed the impugned order inasmuch as the following grounds had not been answered by the Trial Court:-

a) The preliminary decree, dated 22.06.1984, had abated as the 1^st defendant had passed away and appropriate steps were not taken to bring on record the LRs of the 1^st defendant.

b) Order 32 Rule 12 of the CIVIL PROCEDURE CODE , 1908 [for short “the CPC”] requires leave to be taken for proceeding in a case against a minor who has attained a majority.

c) The 2^nd defendant, who was the 2^nd petitioner in the application, had already filed O.S.No.273 of 2022 before the Principal Junior Civil Judge, Tenali, against the petitioner herein for an injunction, on the ground that the 2^nd defendant is in possession of the property.

d) That a Trial should have been conducted in the matter before an advocate commissioner was appointed, in view of the various contentions raised by the petitioner regarding the changed circumstances after the passing of the preliminary decree.

6. Sri Phani Teja Cheruvu, the learned counsel for the petitioner would contend that Section 141 of the CPC which deals with miscellaneous proceedings provides for such a Trial and relies upon the Judgment of the erstwhile Andhra Pradesh High Court, in the case of Mothukuri Ranga Rao & Anr. Vs. Royyala Laxminarayana & Ors. (2007) 12 AP CK 0051.

7. Sri J.V. Phaniduth, the learned counsel for the respondents would contend that none of these contentions are maintainable. He would contend that once a preliminary decree has been passed the question of the suit abating even upon the demise of the parties would not arise. He relies upon the Judgment of the Hon’ble High Court of Delhi, in the case of Kishan Lal & Ors. Vs. Nathi Lal, AIR 1971 Delhi 308 as well as the Judgment of the Privy Council, in the case of Lachmi Narain Makwary & Ors. Vs. Balmakund Marwary & Anr. AIR 1924 PC 198 .

8. Sri J.V. Phaniduth, the learned counsel for