The court upheld the appointment of an Advocate Commissioner to divide the suit properties, despite the pendency of an application to set aside the exparte preliminary decree.

The revision petitioners/defendants 1 to 3 have projected this civil revision petition aggrieved against the order dated 7. 2007 in I.A.No.886 of 2006 in O.S.No.262 of 2005 on the file of District Munsif, Polur in appointing an Advocate Commissioner and directing him to divide the suit properties into thirty equal half and to allot seven shares to the first respondent/plaintiff.

2. The learned counsel appearing for the revision petitioners urges before this Court that the trial Court ought to have seen that against Exparte preliminary decree passed in O.S.No.262 of 2005 dated 26. 2006, the revision petitioners herein have filed an application to set aside the exparte preliminary decree under Order 9 Rule 13 CPC and the same is pending and further that if the plaintiff is permitted to proceed with the final decree and for appointment of an Advocate Commissioner, it will go against the revision petitioners herein and moreover the trial Court should not have passed order in I.A.No.886 of 2006 for appointment of the Advocate Commissioner inasmuch as an application to set aside the exparte preliminary decree is pending before the same Court and therefore, prays for allowing the civil revision petition.

3. On going through the orders passed by the trial Court in I.A.No.886 of 2006 in O.S.No.262 of 2005, this Court is of the view that the order passed in regard to the appointment of Advocate Commissioner does not suffer from any material irregularity of illegality and that the trial Court has rightly appointed Mr. K. Ariyanathan as an Advocate Commissioner directing him to divide the suit property into 30 equal shares and to allot seven shares to the 1st respondent herein/plaintiff and to file his report with plan, and in that view of the matter, this revision fails and the same is hereby dismissed.

4. In fine, this civil revision petition is dismissed. No costs. Consequently, connected M.P.No.1 of 2007 is also dismissed. It is open to the revision petitioners/defendants 1 to 3 to seek appropriate remedy before the trial Court in regard to the pending unnumbered petition filed under Order 9 Rule 13 CPC in accordance with law.