IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FOURTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.2466 of 2009 Between: Vutukuri Meenender Goud .. Petitioner AND Parepally Satyanarayana and another .. Respondents ORDER: This civil revision petition is directed against the order in I.A. No.555 of 2007 in O.S. No.302 of 2004 on the file of the Junior Civil Judge, Nalgonda, dated 13-04-2009. The petition under Section 144 read with Section 151 of the Code of Civil Procedure for restitution of the possession of the suit premises to the 1st defendant was allowed by the trial Court on the ground of the revision petitioner/plaintiff coming into possession of the suit premises after breaking open of the lock of the suit mulgi by the advocate commissioner appointed in I.A. No.1097 of 2004 during the pendency of the suit. The trial Court observed that in the main suit it was established that the revision petitioner was out of possession as on the date of the suit, but subsequently came into possession on 30-07-2004 through an advocate commissioner. Consequently, it ordered restitution in exercise of not only the powers under Section 144 but also under Section 151 of the Code of Civil Procedure, 1908. The revision petitioner claims herein that the appointment of advocate commissioner is the subject of C.R.P. No.5864 of 2004, which was dismissed by the High Court confirming the order in I.A. No.1097 of 2004, dated 29-07-2004. Consequently, the petitioner, prima facie, in possession should not have been disturbed by granting the relief of recovery of possession to the 1st defendant. Sri B. Shiva Kumar, learned counsel for the revision petitioner and Sri G. Dhananjai, learned counsel for the 1st respondent/1st defendant are heard. The 2nd respondent, Sub- Inspector of Police is only a proforma party not connected with the subject matter of the dispute. The point for consideration is whether the impugned order is susceptible to being revised in these proceedings ? Point: The judgment in the suit, dated 13-04-2009 by the trial Court on merits was to the effect that the evidence on record clearly goes to show that after breaking open the lock of the suit mulgi by the advocate commissioner, the plaintiff occupied the same as stated by P.Ws.1 to 3 in their cross-examination. The trial Court deduced from the admissions that the plaintiff was out of possession as on the date of the suit. The trial Court accordingly concluded that the plaintiff did not make out a case for grant of perpetual injunction in view of the plaintiff being put in possession of the suit mulgi after breaking open the lock by the advocate commissioner. Sri B. Shiva Kumar, learned counsel stated that the judgment and decree of the trial Court are under challenge in the first appeal which is pending. In the impugned order, the trial Court obviously directed restitution considering that obtaining of the possession of the suit mulgi by the plaintiff during execution of the warrant by the learned advocate commissioner amounted to mistake of the Court entitling the 1st respondent herein in equity to restoration of such possession either under the specific provision for restitution under Section 144 or even otherwise in exercise of inherent powers under Section 151 of the Code of Civil Procedure. Thus, the impugned order was consequential to and dependant upon the conclusions of the trial Court in the judgment in the main suit itself and it would be but appropriate that the first appellate Court, which is seized of the matter, deals with and determines any questions arising in pursuance of the judgment and decree under challenge and any expression of opinion on the merits of the conclusions of the trial Court in the restricted revisional jurisdiction will prejudice the rights and interests of the parties in the first appeal. While the order in C.R.P. No.5864 of 2004, dated 31-08-2007 dismissing the revision petition against appointment of an advocate commissioner was both on merits and also as it had become infructuous, the order observed about the question of possession stating that the commissioner’s report does not contain any material as to who was in possession of the property except observing the physical features and the articles present in the mulgi. While the order in that revision, thus, has no relevance to the question in issue herein, the question herein is not the validity and legality of appointment of an advocate commissioner, but about the physical possession of the suit premises with the plaintiff being since prior to the suit or after the suit. As already stated the question is better left open for the first appellate Court to decide in the event of the revision petitioner invoking its jurisdiction in this regard and not for determination herein. If the revision petitioner is so advised, the restitution of the suit mulgi to the 1st defendant as ordered in the impugned order can be canvassed before the first appellate Court. Accordingly, with the observation that the question in issue herein is better left for the first appellant Court to decide, it should be stated that the impugned order cannot be considered to be beyond the jurisdiction of the trial Court being consequential to its judgment and decree on merits in this suit. Accordingly, the civil revision petition is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 04-02-2011 Svv