D MANGAMMA Vs. P MOHAN

JUDGEMENT

(1.) This revision is directed against the order dated 6-12-1988 of the learned III Additional District Judge, Chittoor at Tirupati appointing a Commissioner in l.A.No. 642 of 1988 in A.S.No. 47 of 1987 on his file. The facts which are relevant for appreciation of the point in question are the following :

(2.) The revision petitioner is the respondent in the appeal, respondent in l.A.No. 642 of 1988 and plaintiff in the suit while the respondents in the revision petition are the appellants in the appeal, petitioners in LA.No. 642 of 1988 and the defendants in the suit. The parties will be referred to as arrayed in the suit. The plaintiff filed the suit for a declaration and injunction alleging that the second defendant who is the wife of the first defendant without any manner of right or title to the suit property are trying to occupy the same about four days prior to the institution of the suit. The defendants resisted the suit alleging that the second defendant purchased the property more particularly mentioned in her written statement, under Ex. B-1 sale deed and eversince have been in possession and enjoyment of the same, In the suit an application in I.A.No. 878 of 1980 was filed by the defendants for the appointment of a Commissioner to localise the suit land etc., reliefs. The said application was allowed. A Commissioner was appointed and he filed his report along with a sketch etc. Having regard to the oral and documentary evidence the trial court decreed the suit as per the judgment dt. 27-2-1987. Aggrieved by the said judgment and decree the defendants preferred A.S.No. 47 of 1987 on the file of the learned III Additional District Judge, Chittoor at Tirupati and the said appeal is pending. After the institution of the appeal, the defendants filed I.A.No. 642 of 1982 for the appointment of a Commissioner and as per the orders dated 6-12-1988, the orders under revision, the learned III Additional Judge, Chittoor at Tirupathi was pleased to appoint a Commissioner and aggrieved by the said orders the present revision petition was filed.

(3.) In the first instance the learned counsel appearing for the defendants submits that in a revision petition instituted under Section 115 of the Code of Civil Procedure the orders passed appointing a Commissioner cannot be reviewed and to substantiate the said contention reliance is placed on the decisions reported in Maidhavacharyulu vs. Venkata Raol, Mir Mazhar Ali Saheb and others vs. Mir Gulam Murtuza Ali Saheb; and In the matter of B.H.P. & V. Ltd., Visakhapatnam.