IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY SEVENTH DAY OF JANUARY, TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO CIVIL REVISION PETITION No. 1405 OF 2010 BETWEEN: Rapally Siddhamma …PETITIONER AND Kokkula Gangubai (Died), Kokkula Bhaskar and Others. …RESPONDENTS The Court made the following: THE HONOURABLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITION No. 1405 OF 2010 ORDER: The Revision Petition is filed against the order of the Senior Civil Judge, Nizamabad, passed in I.A.No.668 of 2006 in O.S.No. 140 of 1982, dated 30-06-2009. The application was filed by the decree- holder/revision petitioner herein, for appointment of an Advocate Commissioner to partition the schedule properties. 2. According to the case of the petitioner, the suit O.S.No. 140 of 1982 was decreed on 14-09-1989 and preliminary decree was passed. Thereafter, an appeal was preferred in A.S.No. 50 of 1989 and it was dismissed for default on 07-09-1994 and subsequently, it was restored and finally disposed of on merits on 20-08-2003. 3. The respondent contended that while the appeal A.S.No. 50 of 1989 was pending, no stay was obtained and I.A.No. 885 of 1999 was filed and it was dismissed on 03-09-2003 as barred by limitation and that has become final and therefore, the present application is not maintainable. 4. The learned Senior Civil Judge accepted the contention of the revision petitioner that there is no period of limitation prescribed for filing the application for execution of the decree for partition, but however, dismissed the application on the ground that the dismissal of earlier application I.A.No. 885 of 1999 operate as res judicata. 5. The point for consideration is whether the order of the lower Court is legal and sustainable? 6. Before appreciating the contentions, it is useful to mention a few facts with relevant dates. The suit was decreed on 14-09-1989. The appeal A.S.No. 50 of 1989 was dismissed for default on 07-09-1994. The application I.A.No. 885 of 1999 was filed on 09-11-1999. The said application was dismissed on the ground that the application is filed beyond a period of three years from 07-09-1994. Subsequently, the appeal was restored to file and it was disposed of on 20-08-2003 on merits. 7. So far the question of limitation, which was accepted by the lower Court in I.A.No. 885 of 1999 as being three years is concerned, it is against the provisions of Limitation Act, 1963, and also the settled law. However under the impugned order the lower Court has accepted that there is no limitation for passing of a final decree in a suit for partition. In this connection, the decision reported in Jonnavaram Ibrahim and another Vs. Uppaluru Jahara Bi (died) per LRs,[1] is considered. 8. Evidently, the dismissal of the earlier application apart from being against the principles of law of limitation is also against the subsequent facts. The earlier application was dismissed on the ground that the appeal was dismissed on 07-09-1994 for default. It is not in dispute that the said dismissal order was set aside and the appeal was restored to file and finally disposed of on 20-08-2003. 9. In view of the above circumstances, the decree of the Appellate Court, dated 07-09-1994 does not exist and therefore, any application for appointment of Advocate Commissioner in I.A.No. 885 of 1999 on the basis of such a decree is not valid and maintainable. It is needless to say that when once the default order is set aside, the appeal gets restored and therefore, the final decision subsequently given is the cause of action for filing of the application. It is not in dispute that the period of limitation starts from the date of the Appellate Court’s decree as it merges with the lower Court decree. In this connection, the decision reported in Posani Ramachandraiah Vs. Daggupati Seshamma[2], is to be considered. 10. In this case, the learned Senior Civil Judge has solely replied upon the factum of dismissal of I.A.No. 885 of 1999 and applied the principle of res judicata basing on the decision reported between Barkat Ali and another Vs. Badri Narain (D) by Lrs[3] relied on by the learned counsel for the respondents. According to the above decision, even the interim orders in between the parties operate as Res judicata, it has to be noted that before applying the principle of Res judicata it is necessary to see as to whether the earlier order sought to be relied upon is valid and binding. When once the decree, dated 07-09-1994, passed by the Appellate Court, which is a decree of dismissal of the appeal is set aside, no decree exists and therefore, any order passed by a Court taking into consideration such a decree is not valid and consequentially the principles of res judicata have no application. Therefore, for the above reasons, the order of the lower Court suffers from infirmity. Merely because the stay is not there, it does not mean that the right of the decree holder to proceed from the date of the decree of the appellate Court is prohibited. Therefore, I hold that the order of the lower Court is liable to be set aside and accordingly, the order is set aside and the learned Senior Civil Judge is directed to proceed with further steps in the application. 11. In the result, the Civil Revision Petition is allowed setting aside the order of the lower Court and the learned Senior Civil Judge is directed to proceed with further steps in the application I.A.No. 668 of 2006. There shall be no order as to costs. Date: 27-01-2011. ________________________ N.R.L.NAGESWARA RAO,J INL THE HONOURABLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITION No. 1405 OF 2010 January 27, 2011 [1] 2005(3) ALT 545. [2] AIR 1978 ANDHRA PRADESH 342 [3] 2008 SAR (Civil), 358