KARAKA VARAQHALAMMA Vs. VELAGALA SIMHACHALAM

JUDGEMENT

(1.) This Civil Revision Petition is directed against the order dated 21.06.2006 passed in I.A. No. 309 of 2004 in O.S. No. 71 of 1981 on the file of the Junior Civil Judge, Kothavalasa, whereby and whereunder the learned Junior Civil Judge over-ruled the objections raised by the judgment debtors and appointed Sri T. Shivaji, Advocate as Commissioner for determination of mesne profits as per the decree.

(2.) Background facts in a nutshell leading to filing of this revision by the 1st Petitioner/ 2nd Defendant in O.S. No. 71 of 1981 are: Karaka Suri along with 4 others filed the suit for declaration of title, recovery of possession and mesne profits against Karaka Varahalamma and Velagala Yerrayyamma in respect of suit schedule property. The suit came to be decreed on 20.07.1988 declaring that Velagala Simhachalam-2nd Plaintiff is owner of the suit schedule property and that she is entitled to recover vacant possession of the same and also to mesne profits. The Defendants filed a petition under Order 9, Rule 13 Code of Code of Civil Procedure to set aside the ex parte decree dated 20.07.1988 passed in O.S. No. 71 of 1981. They also moved I.A. No. 762 of 1992 in O.S. No. 71 of 1981 to condone the delay of 336 days in filing the petition to set aside the ex parte decree. Their application ended in dismissal on 28.06.1993. They assailed the order dated 28.06.1993 passed in I.A. No. 762 of 1992 in O.S. No. 71 of 1981 by filing CRP No. 2202 of 2000. The said revision ended in dismissal on 25.07.2000. Velagala Simhachalam/2nd Plaintiff filed I.A. No. 309 of 2004 under Order 20, Rule 12 r/w. Section 151 Code of Code of Civil Procedure seeking appointment of an Advocate-Commissioner to determine the future profits from the date of suit to the date of delivery of the suit schedule property to them. The Defendants filed counter resisting the application. Para.3 of the counter reads as hereunder:

(3.) The J. Drs submit that in the above E.P. No. 35/04, counter is filed, heard on both sides and this Honourable court is pleased to dismiss the above E.P., since it is barred by limitation. Moreover there is no appeal against the said order of this Honourable court so far. Since the above E.P. is dismissed by this Honourable court, the above petition for appointment of court commissioner is also to be closed by this Honourable court. There is no use in hearing the above petition. Knowing fully well about all these facts, the D. Hr. has been pressing for the above E.A. to appoint a court commissioner. It is nothing but making inconvenience to the valuable time of this Honourable Court.