THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL REVISION PETITION No.5138 of 2006 O R D E R: The Civil Revision Petition is directed against the appointment and issuance of warrant to an Advocate-Commissioner in I.A.No.274 of 2004 in O.S.No.46 of 2001 on the file of the Senior Civil Judge, Gurazala on 19.4.2005 for the purpose of effecting partition in terms of the preliminary decree. A preliminary decree for partition and allotment of 1/8th share to the first respondent herein was passed in O.S.No.46 of 2001 on the file of the Senior Civil Judge, Gurazala on 04.09.2003. The revision petitioner herein obtained a decree for permanent injunction in respect of the suit schedule properties in O.S.No.376 of 2001 on the file of the Principal Junior Civil Judge’s Court, Gurazala against the mother of the plaintiff in O.S.No.46 of 2001 and others on 26.9.2005. But obviously the same has no bearing on the further steps, which the minor plaintiff can take in pursuance of the preliminary decree passed in O.S.No.46 of 2001. Accordingly, I.A.No.273 of 2004 was filed for passing of a final decree in terms of preliminary decree and Sri B.Chinnapa Reddy, learned counsel for the revision petitioner, at the request of the Court, had furnished the copies of the docket proceedings in the said petition. The same show that notices were ordered to respondent Nos.1 to 4 and the respondents had entered appearance before the trial Court through their counsel and also filed a counter. It is only after hearing both the parties that the order was passed on 19.4.2005 by the trial Court appointing the Advocate-Commissioner and issuing the impugned warrant. In the said order and in the warrant of commission, the trial Court has specifically mentioned that the Advocate-Commissioner should give notice to both sides prior to the execution of the warrant, take work memos, answer them and file the report. What has been challenged in this revision is the appointment of and entrustment of warrant to the Advocate-Commissioner on the ground of want of notice to the revision petitioner. But, as the proceedings show the facts to be otherwise, the revision cannot be sustained on that ground. However, Sri B.Chinnapa Reddy, learned counsel for the revision petitioner contended that the Advocate-Commissioner never gave notice to the revision petitioner before executing the warrant of commission and though the copy of the notice to both the parties on 19.4.2005 filed in the material papers is as though all the defendants refused to take notice, in fact, no such notice was tendered. The copy of the report of the Advocate- Commissioner also shows that the defendants 1 to 4 were stated to be having no advocate, though the copy of the docket proceedings in the petition shows that an advocate filed vakalat for the defendants 1 to 4 on 22.6.2004 and there is nothing further to show that the said Advocate had given up his vakalat for the defendants. Sri B.Chinnapa Reddy, learned counsel further brought to notice that apart from the advocate-commissioner executing the warrant without notice to or the knowledge of the defendants, even an opportunity to file appropriate objections was not given by the trial Court and the final decree petition was allowed on 27.02.2006. While it should be noted that the execution of the warrant of commission by the Advocate-Commissioner is not a subject matter of this revision, if the Advocate-Commissioner did not conduct an enquiry as per Order 26, Rule 14 Sub Rule 1 of the Civil Procedure Code, it is always open to the defendants to challenge the same and the enquiry so contemplated by the Rule will necessarily mean an enquiry after issuing notice to and giving opportunity to both the parties. Similarly, a direction by the Court to the parties to appear before the Commissioner in person or by agents or by pleaders under Order 26 Rule 18 of the Civil Procedure Code, is also stated to have not been incorporated in the warrant of commission which will vitiate the report and whether the Advocate Commissioner’s report is vitiated on such legal grounds due to non-compliance with the mandatory provisions of Order 26 or otherwise vitiated on factual grounds are questions to be determined in appropriate proceedings, which may be taken recourse to by the revision petitioner, if he has a right to do so, and not herein. Therefore, the revision petitioner is at liberty to pursue such remedies, if available to him under law, on such grounds, but this Civil Revision Petition has to fail. Accordingly, the Civil Revision Petition is dismissed without costs. _____________________ G.BHAVANI PRASAD,J 22nd July, 2010. PNV