THE HON’BLE SRI JUSTICE ABHINAND KUMAR SHAVILI C.R.P.No.2218 OF 2024

ORDER:

This Civil Revision Petition is filed aggrieved by the order dated 12.06.2024 passed in I.A.No.796 of 2022 in O.S.No.374 of 1994 by the Principal Senior Civil Judge, Medchal-Malkajgiri District, at Kushaiguda.

2. Heard Sri R.A.Achuthanand, learned counsel appearing for the petitioners, Sri Bankatlal Mandhani, learned counsel appearing for respondent Nos.1 to 3 and M/s. Uday Vir Singh Laur, learned counsel appearing for respondent Nos.5 and 6.

3. It is the case of the petitioners that the 1^st respondent- plaintiff has filed O.S.No.374 of 1994 for partition of A and B schedule properties into 9 equal shares and allotment of 1/9^th share to the plaintiff and 1/9^th share to defendant Nos.1 to 8. The trial vide Court order dated 29.04.2005 decreed the suit by passing a preliminary decree. Aggrieved by the same, petitioners-defendant Nos.1, 5 to 8 have filed A.S.No.76 of 2005 and the Lower vide Appellate Court order dated 25.01.2008 had partly allowed the appeal and the share of the petitioners-defendants 2 to 4 and the plaintiff-1^st respondent was modified from 1/9^th share to 1/45^th share in item Nos.1, 3 & 4 of ‘A’ schedule property. Aggrieved by the same, the 1^st respondent-plaintiff and defendants 2 to 4 have filed I.A.No.171 of 2008 seeking to review the decree and judgment passed in A.S.No.76 of 2005. The Lower Appellate vide Court order dated 11.08.2015 allowed the said application by observing that while deciding the appeal allotting the share in item No.4 of the ‘A’ schedule property, an error was occurred on the ground that the same was sold and the parties have to share the sale proceeds etc., and as such it is liable to be set aside. Thereafter, the plaintiff-1^st respondent and respondents-defendants 2 to 4 have filed the present application in I.A.No.796 of 2022 before the trial Court seeking to appoint an Advocate-Commissioner to partition the suit schedule ‘A’ property be metes and bounds in terms of vide preliminary decree. The trial Court order 12.06.2024 allowed the said application by appointing an Advocate Commissioner for division of suit schedule ‘A’ property in terms of preliminary decree with the aid of Mandal Surveyor. Hence, the present revision.

4. Learned counsel appearing for the petitioners had contended that the trial Court erred in ordering the application as the order passed by the trial Court was modified by the Lower Appellate Court by holding that the plaintiff and defendants 2 to 4 are entitled to 1/45^th share in items 1, 3 and 4 of ‘A’ schedule properties. However, in the review, that portion of the order i.e., allotment of item No.4 of ‘A’ schedule property was deleted. Therefore, the trial Court has erred in appointing the Advocate- Commissioner as the preliminary decree has dealt with 1/9^th share and in the appeal, the Lower Appellate Court has ordered 1/45^th share each to the 1^st respondent-plaintiff and petitioners-defendants 2 to 4 and later, in review, the Lower Appellate Court set aside that portion of the order in respect of allotment of share in item No.4 of ‘A’ schedule property as it was sold. Therefore, appropriate orders be passed in the revision by setting aside the order dated 12.06.2024 passed in I.A.No.796 of 2022 in O.S.No.374 of 1994 and remand the matter to the trial Court by appointing an Advocate-Commissioner by duly taking into consideration the fact that the preliminary decree should be executed at the time of final decree by taking into consideration the orders passed by the Lower Appellate Court in the appeal as well as in the review.

5. Learned counsel appearing for the respondents had contended that the petitioners could have brought to the notice of the Advocate Commissioner about the modification of the preliminary decree by the Lower Appellate Court. Instead of doing so, the petitioners have approached this Court. Learned counsel had further contended that the respondents have no objection if