IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRD DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1476 OF 2009 BETWEEN S. A. Bala. …PETITIONER AND Rachaputi Subbraja Gupta and another. …RESPONDENTS Counsel for the petitioner: MR. P. GAMGARAMI REDDY Counsel for the Respondent: MR. NUTHALAPATI KRISHNA MURTHY The Court made the following: - ORDER: An application being I.A.No.584 of 2007 filed by the petitioner herein was considered by the lower Court by order dated 31.10.2008 and a reading of the impugned order shows that the Court below has attempted to sit in judgment over the preliminary decree and has given direction to the respondent to lead evidence on the applicability of the principle of Damdupat. 2. Heard both sides. 3. It is not in dispute that the preliminary decree based on the mortgage has attained finality. The application filed by the petitioner for passing final decree under Order 34 Rule 5 of the Code of Civil Procedure, 1908, therefore, had to be considered in terms of the preliminary decree. The Court below, therefore, was not right in thinking that it could modify the preliminary decree on any ground. The question of leading evidence as directed in the impugned order, therefore, does not arise. The impugned order is accordingly set aside. The Court below is directed to consider and pass appropriate orders in the application filed by the petitioner for passing final decree in terms of Order 34 Rule 5 CPC. The civil revision petition is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J December 3, 2010 DSK