ORDER:

Assailing the order dated 15.02.2022 passed by the X Additional District Judge, Anakapalle, in I.A.No.1030 of 2018 in O.S.No.323 of 2004, allowing the said application filed by the 1st respondent/plaintiff for appointment of an Advocate Commissioner to partition the suit schedule properties into two equal shares in terms of the preliminary decree dated 09.07.2018 passed in the suit, the petitioner/4th defendant preferred this civil revision petition.

2. The 1st respondent filed the suit against respondent Nos.2 to 5 and the petitioner for partition of plaint schedule properties into two equal shares by metes and bounds and for allotment of one such share to him, for determination of future profits and for a direction to them to pay his half share of future profits on a separate application to be filed by him.

i) The 1st respondent and the 2nd respondent are brothers. The 3rd respondent is mother and the 4th respondent is sister of respondent Nos.1 and 2. The petitioner is son and the 5th respondent is daughter of 2nd respondent.

ii) After full-fledged trial and after hearing both sides, the Court below allowed the suit by judgment and preliminary decree dated 09.07.2018. Pursuant to the preliminary decree dated 09.07.2018, the 1st respondent filed an application being 1030 of 2018 under Order XXVI Rule 13 r/w Section 151 CPC seeking appointment of an Advocate Commissioner to partition the suit schedule properties. The petitioner, the 2nd respondent and the 5th respondent filed counters independently. The Court below allowed the said application by an order dated 15.02.2022 which is under challenge in this civil revision petition.

3. Learned counsel for the petitioner/4th defendant would submit that the whole approach of the Court below in passing the impugned order appointing the Advocate Commissioner is without appreciation of the submissions made on behalf of the petitioner. He would also submit that aggrieved by the judgment and preliminary decree dated 09.07.2018 passed by the Court below in O.S.No.323 of 2004, the petitioner filed A.S.No.1917 of 2018 before this Court along with I.A.No.1 of 2018 seeking stay of all further proceedings pursuant to the preliminary decree. This Court vide order dated 28.01.2021 in I.A.No.1 of 2018 in A.S.No.1917 of 2018 directed the Court below to proceed with the final decree proceedings if any, and shall not pass any final decree until further orders, and posted the appeal for final hearing. During pendency of the appeal, the order impugned in the revision petition came to be passed. The learned counsel would contend that the first appeal is a valuable right of appellant and therein all questions of fact and law decided by the trial Court are open for re- consideration. In support of this contention, he relied on the principle of the Hon’ble Supreme Court in Malluru Mallappa Vs.

Kuruvathappa1. Therefore, he prays to allow the revision petition by setting aside the impugned order.

4. On the other hand, learned counsel for the 1st respondent/plaintiff would submit that in the appeal filed by the petitioner, this Hon’ble Court stayed the actual passing of the final decree and not all further proceedings to be taken in pursuance of the preliminary decree. The Court below did not commit any error in appointing an Advocate Commissioner and therefore, the impugned order warrants no interference by this Court. He would contend that appointment of an Advocate Commissioner is only to propose a scheme for partition of properties covered by the preliminary decree; and that no prejudice can be said to have been caused to the petitioner by ordering appointment of Commissioner. In this regard, he placed reliance on a decision of a learned single Judge of the combined High Court of Andhra Pradesh in R. Ramakrishna Reddy Vs. Smt. M. Kamala Devi2. The learned counsel would submit that there are no merits in the revision petition and the same is liable to be dismissed.

5. It is the contention of the petitio