Appointment of a Court Commissioner is unwarranted when there is no demonstration of supervening circumstances to revisit preliminary decrees in partition cases.

ORAL ORDER

This petition by respondent No.5 in FDP No.22/2016 is directed against the impugned order dated 16.07.2025 passed on I.A.No.3, whereby the application filed by the petitioner/respondent No.5 under Order 26 Rule 9 of CPC seeking appointment of a Court Commissioner to verify and record all suit schedule properties standing in the name of Eramma and her son T.Narayan Reddy was rejected by the trial Court.

2. Heard learned counsel appearing for the petitioner, learned counsel for the respondents and perused the material on record.

3. A perusal of the material on record will indicate that respondent No.1/plaintiff instituted a suit in O.S.No.2697/2010 against the petitioner and other defendants for partition and separate possession of her alleged share in the suit schedule immovable properties comprising of three items of immovable properties. The said suit having been contested by the petitioner and other defendants, the trial Court proceeded to pass a preliminary decree vide judgment and decree dated 18.12.2015 decreeing the suit in favour of the plaintiff against the defendants. Aggrieved by the said judgment and decree passed in O.S.No.2697/2010 dated 18.12.2015, the petitioner/defendant No.5 and his father/defendant No.1 preferred an appeal in RFA No.491/2016, which was dismissed by the Hon'ble Division Bench of this Court vide final judgment and decree dated 19.02.2024. The said judgment and decree passed by this Court in RFA No.491/2016 dated 19.02.2024 has attained finality and become conclusive and binding upon all parties including the petitioner herein. Meanwhile, respondent No.1 having initiated final decree proceedings in the instant FDP No.22/2016 to enforce and implement the said preliminary decree, after disposal of RFA No.491/2016 on 19.02.2024, the petitioner filed the instant application-I.A.No.3 under Order 26 Rule 9 of CPC seeking appointment of a Court Commissioner. The said application having been opposed by the respondents, the trial Court proceeded to pass the impugned order rejecting I.A.No.3 by holdings as under:

"ORDER ON I.A.NO.3 U/O.XXVI R.9 OF C.P.C.

Heard both sides on I.A.No.III.

2. This application is filed by the respondent No.5 under Order XXVI Rule 9 r/w/s 151 of C.P.C. to appoint court commissioner to verify and record all the suit schedule properties which stood in the name of late Smt.Eramma and her son T.Narayana Reddy.

3. In support of the application respondent No.5 sworn affidavit stating that, some properties of Narayana Reddy have been given to some daughters and huge amount was spent for marriage of son and daughters. Some developments have been made on suit properties by investing huge amount. So, in order to collect all these evidence, enquiry and investigation is required. So, he prayed to appoint the court commissioner.

4. Petitioner filed objection to this application by opposing appointment of the court commissioner. They contended that respondent No.5 shall not bring a new case before this court. So, she prayed to reject the application.

5. Respondent No.2 adopted objection filed by the petitioner.

6. The following Points arise for my consideration:

(1) Whether appointment of the court commissioner is necessary as prayed in I.A.No.III?

(2) What order ?

7. My answer to the above Point No.1 is in negative and point No.2 is as per final order for the following:

REASONS

8. The preliminary decree was passed by this Court in O.S.No.269/2010 and 1/6^th share was awarded to the plaintiff. Plaintiff is daughter of defendant No.1 and sister of defendants No.2 to 5. The s