THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.1171 OF 2011 24.06.2011 Between: Ganta Malachamma And others …Petitioners AND Kondapalli Raju And others …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.1171 OF 2011 ORDER: The petitioners are aggrieved by the order dated 18.01.2011 in E.A.No.535 of 2010 in E.P.No.423 of 2009 passed by the Court of the I Additional Junior Civil Judge, Kakinada refusing their prayer to appoint an advocate commissioner to identify the property of the Judgment- debtors with the assistance of the Mandal Surveyer. The fact of the matter which is not seriously disputed before this Court is as follows. Respondents 1 and 2 filed O.S.No.1794 of 2004 for declaration of title and recovery of possession in respect of vacant site admeasuring 203 square yards in survey No.144/1 situated at Valasapakala village of Kakinada Rural Mandal. The suit was decreed. Respondents 1 and 2 filed E.P.No.423 of 2009 for recovery of possession. The same was ordered. The petitioners alleged that they are the owners of suit schedule property which was originally part of survey No.144/4 admeasuring Acs.1.83 cents belonging to grandfather of the seventh petitioner, namely, Chinnayya and that the respondents 1 and 2 have no manner of right over the property. They filed E.A.No.534 of 2010 under Order XXI Rule 101 of the Code of Civil Procedure, 1908 (CPC, for brevity) seeking a declaration that they are the owners of petition schedule property, that respondents 1 and 2 herein are entitled to the extent of property covered under Sale Deed dated 18.04.1983 and that the decree is not binding on them. The same is pending. In the said application, they filed E.A.No.535 of 2010 for appointment of advocate commissioner. They also alleged that respondents 1 and 2 influenced the Court Amin and policemen and all of them without any manner of right removed the thatched house belonging to the petitioners. The Court below dismissed the application observing that, “when a comprehensive enquiry has to be conducted in their application under Order XXI Rule 101 of CPC and without establishing their title over the property delivered to the decreeholders, they cannot seek appointment of advocate commissioner for collection of evidence”. The counsel for petitioners contends that the petitioners were dispossessed from their thatched house which does not form part of suit schedule property in O.S.No.1794 of 2004 and this would be verified by appointing an advocate commissioner who can measure the suit schedule property with reference to the sale deed on which respondents 1 and 2 based their title. He, however, does not dispute that the application being E.A.No.534 of 2010 is still pending. The person other than Judgment-debtor is dispossessed from immovable property by a decree holder for possession of such property can make an application to the Court which shall be decided in accordance with Rules 100 to 105 of Order XXI of CPC. All questions arising between the parties or representatives shall be determined by the Court not by a separate suit. Therefore, law contemplates a comprehensive enquiry when a person filed a claim petition complaining wrongful dispossession in obedience to the decree of a Court. In this case, the petitioners already filed such an application and virtually an enquiry has to be made whether their claim for title is sustainable in law. In such an application, the appointment of advocate commissioner is not permissible because it amounts to permitting the party to the proceedings to use the process of Court for collecting evidence. Therefore, the impugned order does not suffer from any error much less a grave error apparent on the face of the record warranting interference under Section 115 of CPC. Further, the High Court shall not decide any issue in the course of suit or proceedings except where the order if it had been made in favour of the party applying for revision would have been finally disposed of the suit or other proceedings (Section 115 of CPC and Shiv Shakti Cooperative Housing Society v Swaraj Developers[1]). The civil revision petition is accordingly dismissed. No costs. _______________ (V.V.S.RAO, J) 24.06.2011 Pln [1] (2003) 6 SCC 659 : AIR 2003 SC 2434