Nakka Anjaiah vs Smt. Padma Bai Thakur
2023 Latest Caselaw 1893 Tel

       THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


            CIVIL REVISION PETITION NO.2202 OF 2023


                               ORDER

This Civil Revision Petition (CRP) is filed against the order of the

I Additional District Judge, Mancherial in I.A.No.66 of 2022 in

A.S.No.13 of 2018 dt.11.11.2022.

2. The suit in O.S.No.70 of 2015 on the file of Principal Junior Civil

Judge at Mancherial was filed by the petitioner herein for specific

performance of an agreement of sale and against the judgment and

decree passed therein, the petitioner herein filed A.S.No.13 of 2018. He

has also filed I.A.No.66 of 2022 in the said Appeal for appointment of

an Advocate Commissioner. It is submitted that the said I.A. was

dismissed by the lower Court by observing that the same will be

considered along with the main Appeal and the matter will be disposed

of simultaneously. Aggrieved by the said observation, the present CRP

is filed.

3. It is stated by the learned counsel for the petitioner that

respondent No.2 is not a necessary party and therefore, notice was not C.R.P.No.2202 of 2023

issued to him and personal notice was permitted to respondent No.1.

The notice issued to respondent No.1 was, however, returned unserved

with the postal endorsement "the addressee refused to receive the same".

In view of the same, the notice is deemed as served.

4. The learned counsel for the petitioner reiterated the submissions

made in the affidavit filed along with I.A.No.66 of 2022 in A.S.No.13 of

2018 for appointment of an Advocate Commissioner and submitted that

the lower Court ought to have decided the I.A. and thereafter, proceeded

with the main appeal. In support of his contentions, he placed reliance

upon a decision of this Court in C.R.P.No.847 of 2022 dt.18.04.2023.

5. Having regard to the above submissions and also having gone

through the order of the lower Court, this Court is of the opinion that the

observation of the lower Court for not deciding I.A.No.66 of 2022 that it

will be decided along with the main appeal is erroneous and is not

substantiated by any rule position. The I.A. is for appointment of an

Advocate Commissioner to note down the boundaries of the suit

schedule property and therefore, it is not necessary that it has to be dealt

with only when the main appeal is decided.

C.R.P.No.2202 of 2023

6. In view of the same, the order dt.11.11.2022 in I.A.No.66 of 2022

in A.S.No.13 of 2018 on the file of the I Additional District Judge,

Mancherial is set aside and the lower Court is directed to dispose of

I.A.No.66 of 2022 after issuance of notice to all the concerned. It is

made clear that the lower Court shall dispose of I.A.No.66 of 2022 first

and thereafter proceed to the main appeal.

7. The Civil Revision Petition is accordingly allowed. No order as to

costs.

8. Pending miscellaneous petitions, if any, in this CRP shall stand

closed.

___________________________ JUSTICE P. MADHAVI DEVI

Date: 01.09.2023 Svv