MAHANTI PENTAYYA Vs. KELLA SANYASAPPALANAIDU

JUDGEMENT

(1.) This Revision Petition is directed against the order in IA No.179 of 1997 in OS No.168 of 1983 on the file of Principal Junior Civil Judge, Vizianagaram dated 4-2-1998 appointing an Advocate Commissioner for localisation of the plaint schedule property with the assistance of a qualified Mandal Surveyor. Plaintiff No.l in the suit is the Revision Petitioner and Plaintiff No.2 is impleaded as 3rd Respondent in this revision.

(2.) The Respondent Nos. l and 2 herein, who are the defendants in the suit filed the above petition under Order XXVI, Rules 9 and 10, read with Section 151 of the Code of Civil Procedure seeking appointment of Advocate-Commissioner to localise the plaint schedule property and to draw a plan with the assistance of a licensed Surveyor. It is stated in the affidavit of Respondent No.l herein that he had filed a similar petition earlier and the same was dismissed. But, he is of the opinion that there is any amount of necessity for appointment of an Advocate-Commissioner with reference to the sale deeds filed by the revision petitioner/plaintiff, as otherwise it is not possible to the trial Court to come to a just finding. The Revision Petitioner resisted the petition on the ground that the order in the earlier petition operates as res judicata and hence the petition is liable to be I dismissed.

(3.) The learned principal Junior Civil Judge, Vizianagaram considered the rival contentions and held that the earlier order does not operate as rex judicata. It is further held that the appointment of Advocate-Commissioner is in no way prejudicial to the revision petitioner/plaintiff and that it is essential to appoint an Advocate-Commissioner. Accordingly, the petition has been allowed and one Sri. Y. Narayana Murthy, advocate has been appointed as Commissioner to localise the plaint schedule property with the assistance of a qualified Mandal Surveyor and also to prepare a plan with the help of F.M.B. It is this order that is assailed in this revision.