IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE FIFTEENTH (15TH) DAY OF APRIL, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.2226 of 2008 Between: Kakarlapudi Venkata Surayanarayana Raju & another … Petitioners And: Kakarlapudi Venkatapathi raju (Died) & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.2226 of 2008 ORDER: This revision petition is directed against the order dated 22.10.2007 in IA No.224 of 2004 in OS No.2 of 1995 on the file of the Senior Civil Judge, Yelamanchili, wherein, the said application filed by the respondents 1 to 5 herein under Order XX Rule 12 CPC read with Order XXVI Rule 10 CPC for appointment of Commissioner to ascertain the mesne profits, was allowed. 2. Heard both sides. Perused the record. 3. The first respondent herein filed suit for partition and after regular trial, the suit was decreed granting preliminary decree. The defendants 2 to 10 in the suit filed appeal. During the pendency of the appeal, the first respondent died and his legal representatives were impleaded. The appeal was also dismissed and the preliminary decree was confirmed. As per the preliminary decree, the first respondent was entitled for 1/4th share in the schedule property and 1/4th share that devolved on 11th defendant was also directed to be divided in to three equal shares and one such share be allotted to the legal representatives of the original plaintiff-first respondent herein. The 2nd respondent herein filed IA No.224 of 2004 for appointment of an Advocate Commissioner to ascertain the mesne profits from the schedule property, which according to them, is comprising of coconut garden, yielding about Rs.50,000/- per year. 4. Previously, an Advocate commissioner was appointed on 16.08.2005 and he filed report on 09.09.2005. Certain objections were also filed to the report. Subsequently, warrant was re- entrusted to another Commissioner on 10.04.2006 as some of the parties complained that the notice was not served on them. The second Commissioner filed his report on 21.08.2007, which was only an extract of evidence recorded by him and did not contain his opinion as to the quantum of mesne profits. Again, objections were filed to the said report. The Advocate Commissioner answered the objections by stating that he cannot file any better report expressing his opinion in the absence of any documentary evidence. As the said Commissioner was not able to execute warrant in its entirety and failed to express any opinion regarding the quantum of mesne profits, the trial court appointed 3rd Commissioner Sri P.Satayanandam to ascertain the mesne profits. Aggrieved by the same, the present revision is filed by the defendants 5 and 6. 5. The main contention of the learned counsel for the petitioners is that appointing an Advocate Commissioner to conduct fresh enquiry without rejecting the earlier reports is unsustainable and de nova enquiry cannot be ordered. 6. It is to be noted that the first Commissioner filed a report for which certain objections were raised and the matter was re- entrusted to the 2nd Commissioner. The 2nd Commissioner, though recorded evidence, did not express any opinion regarding the mesne profits. The contention of the learned counsel for the petitioners is that based on the said evidence, the Court itself can arrive at the quantum of mesne profits after hearing both sides. As the report of the 2nd Commissioner was rather incomplete in the sense that it did not contain opinion regarding the quantum of mesne profits, because he expressed his inability to do so, the matter was again entrusted to the 3rd Commissioner. The appointment of 3rd Commissioner itself cannot be questioned when the earlier reports were found to be of no assistance or little assistance to the Court in arriving at just decision in the matter. However, the earlier reports do not get obliterated, especially, when there was no order rejecting the same. The 3rd Commissioner can only take up the work from where it was left by the previous Commissioners and can complete the unfinished task. Both the parties are at liberty to adduce further evidence, if any, they may choose to let in before the present Commissioner and keeping in view of the entire evidence on record including the one recorded by the earlier Commissioner, the present Commissioner shall file his report, duly ascertaining the quantum of mesne profits. It is needless to say that both the parties are at liberty to file objections if any to the said report and thereafter, the Court shall pass appropriate orders after giving opportunity of hearing to both sides regarding their objections. 7. In the circumstances, the impugned order re-entrusting the warrant to the 3rd Commissioner, Sri Satayanadam, Advocate, for completion of the execution of the warrant, does not therefore call for any interference by this Court. 8. In the result, the civil revision petition is dismissed. No order as to costs. The interim stay granted earlier shall stand vacated. __________________ G.V.SEETHAPATHY, J Date: 15.P04.2011 bss