Andhra Pradesh High Court - Amravati

Paili Apparao, vs Palli Appalanaidu, on 18 August, 2022

HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

          CIVIL REVISION PETITION No. 1092 of 2022

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

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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.

NV,J C.R.P.No. 1092 of 2022

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 petitioner during pendency of the

appeal, the impugned order was passed by the Court below, and that

the first appeal is a valuable right of the petitioner and therein all

questions of fact and law decided by the trial Court are open for re-

consideration. In this context, he relied upon a judgment of the

AIR 2020 SC 925

AIR 2004 AP 484

NV,J C.R.P.No. 1092 of 2022

Hon'ble Supreme Court in Malluru Mallappa Vs. Kuruvathappa

(1 supra) wherein it is held as under:

"14. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a re- hearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial Court are open for re-consideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions."

6. The facts in the aforesaid case are that the trial Court dismissed

the suit filed by the plaintiff for specific performance of agreement to

sell on the grounds that the suit was barred by time and that the

plaintiff was not ready and willing to perform his part of the contract.

On appeal, the High Court confirmed said decree. The Apex Court

allowed the appeal in part setting aside the judgment of the High

Court and remanded the matter to the High Court for fresh disposal,

holding that the High Court has neither re-appreciated the evidence of

the parties nor it has passed a reasoned order. Whereas, in the present

case, the 1st respondent filed suit for partition of plaint schedule

NV,J C.R.P.No. 1092 of 2022

properties and it was decreed. In the appeal filed by the petitioner, this

Court directed the Court below to proceed with the final decree

proceedings if any, and shall not pass any final decree until further

orders, and the appeal is still pending adjudication. In the considered

opinion of this Court, the judgment relied on by the learned counsel

for the petitioner is not applicable to the facts of the present case,

because the facts in both the cases are quite different from each other.

7. In the decision in R. Ramakrishna Reddy Vs. Smt. M. Kamala

Devi (2 supra) relied on by the learned counsel for the 1st respondent,

a learned single Judge of the combined High Court of Andhra Pradesh

held thus:

"3. The contention of the learned counsel for the petitioner is that since the order in C.M.P.No.7353 of 2001 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 a commissioner to make a notional partition of the plaint schedule properties.

5. Stay granted in C.M.P.No.7353 of 2001 in A.S.no.1154 of 2001, is against passing of a final decree only, and so, as rightly observed by the court below, it is not precluded from taking steps which are to be taken before the passing of a final decree. The commissioner is appointed by the Court below only to propose a scheme of partition in terms of the preliminary decree. In suits of partition, a commissioner appointed by Court only proposes a scheme of partition. On the proposal made by the Commissioner, the Court would either draw lots or

NV,J C.R.P.No. 1092 of 2022

would itself allot the shares to the parties. So merely because the Court below ordered that the Commissioner shall make a notional partition of schedules A to C and make notional allotment in terms of preliminary decree, it does not mean that the proposal made by the Commissioner would be binding on the parties. In fact that direction should be taken to mean that the Commissioner was asked to propose a scheme of partition of plaint schedules A to C into 18 shares, and propose which share can be allotted to which of the parties.

6. Since the order under Revision only directs the Commissioner to propose a scheme for partition of the properties covered by the preliminary decree, no prejudice can be said to have been caused to the revision petitioner by that order and so I find no grounds to interfere with the order impugned."

8. The facts in the afore-mentioned judgment and the facts in the

present case are identical. Therefore, the judgment relied on by the

learned counsel for the 1st respondent is squarely applicable to the

facts of the case on hand, for the reason that the Commissioner was

appointed by the Court below only to propose a scheme of partition of

the plaint schedule properties in terms of preliminary decree which

would cause no prejudice to the revision petitioner. In view of the

above, this Court finds no merit in the revision petition to interfere

with the impugned order and the revision petition is liable to be

dismissed.

NV,J C.R.P.No. 1092 of 2022

9. Accordingly, the Civil Revision Petition is dismissed. No order