K.V.S.N.V. Prasad and Another vs Public Club and Others

P.S. Narayana, J.—The petitioners filed the present civil revision petition questioning the order made in a memo in LA. No. 408/2004 in O.S. No. 155/2004 on the file of Junior Civil Judge, Huzumagar dated 15-12-2005.

Sri Anantha Krishna, the learned Counsel representing the revision petitioners would maintain that no doubt the order made appointing Commissioner in I.A. No. 498/2004 in O.S. No. 155/2004 had attained finality and the same was not questioned. But however when the impracticability of the execution of the warrant had been expressed the question of reentrustment would not arise and that too on a memo such order cannot be made for the reason that it will amount to appointing a second Commissioner inasmuch as a different purpose had been mentioned while making the re-entrustment of the warrant. The learned Counsel made elaborate submissions pointing out the relevant portions of the order both made in LA. No. 408/2004 in O.S. No. 155/2004 initially and subsequent thereto while slightly modifying the same. The learned Counsel also placed reliance on V. Bikshapati Reddy and Others Vs. V. Satyamma and Others, , Gopalakrishnan Vs. P. Shanmugam, , S. Rukman Naik Vs. P. Anjani Prabha and Another, , R. Vijayudu Vs. N. Ramachandra Reddy, and Makam Venkatesh and Others Vs. State of A.P. and Others, .

Per contra Sri Vijay Sen Reddy, the learned Counsel pointed out that it is not a case of either appointing a second Commissioner for a different purpose or appointing a second Commissioner for the same purpose, but it is a case of re-entrustment of warrant in the light of the difficulty expressed by the learned Commissioner. It is not as though the warrant had been returned to the learned Commissioner and at that juncture on the request made the re-entrustment of warrant of Commissioner was made to the learned Commissioner. The learned Counsel also would submit that if there is any further difficulty it is for the learned Commissioner to express that difficulty and bring it to the notice of the Court and at that stage the same cannot be anticipated.

Heard both the Counsel.

It is not in dispute or controversy that the initial order passed appointing an Advocate Commissioner in LA. No. 408/2004 in O.S. No. 155/2004 had attained finality since the same had not been questioned. The operative portion of the said order reads as hereunder :

For the above reasons, I hold that the petition shall be allowed and the Commissioner shall be appointed for the said purpose. As a result Sri A. Srinivasa Reddy, Advocate is appointed as an Advocate Commissioner to execute the warrant of commission. The Advocate Commissioner fee is fixed at Rs. 1,000/- (Rupees one thousand only) directly payable by the party. The Advocate Commissioner shall issue notices to both the Advocates and parties before execution of warrant. The Revenue Divisional Officer, Miryalaguda is directed to depute one Surveyor for execution of this warrant of Commission. Hence, the petition is allowed and no order as to costs.

The learned Judge in the light of the events which had taken place on the strength of a Memo filed by the Counsel for the plaintiff had re-entrusted the warrant of Commission and the operative portion of the said order is as hereunder :

Under these circumstances, the Commissioner is directed to execute the warrant of commission in the same manner except the job of fixing the boundaries to land in S. Nos. 123 and 193. To be more clear, it is directed that the Advocate Commissioner shall physically verify the property situated within four boundaries given in the plaint schedule and submit his report mentioning the physical features of the suit property with a detailed rough sketch.

The learned Judge in fact had narrated the events which had happened in paras 2, 3, 4, 5 and 6. It is not a case where a fresh Commissioner is being appointed or a second Commissioner is being appointed for the same purpose. It is a case of re-entrustment of warrant and it is just in view of the series of events which had been brought to the notice of the Court clarification had been given while making re-entrustment. Hence in view of the facts and circumstances of the case especially taking into consideration the fact that the order making appointment of Commissioner initially had not been questioned and the same had attained finality, this Court does not see any legal infirmity in the order passed by the learned Judge. In view of the same, the civil revision petition is devoid of merit and the same shall stand dismissed. No costs.