THE HON’BLE SRI JUSTICE GHULAM MOHAMMED CRP No.4898 OF 2009 ORDER: This civil revision petition is filed against the order dated 10-9- 2009 passed in EA No.281 of 2008 in EP No.136 of 2007 in OS No.147 of 1978 by the I Addl. Senior Civil Judge, Vishakapatnam, allowing the application filed to ascertain the mesne profits by an advocate commissioner. 2. Learned counsel for the petitioners strenuously contended that the respondents have to file a separate application in the suit for determination of mesne profits, but not an EA in EP and, therefore, the application filed before the trial Court is not maintainable in law. It is also contended that the petitioners lost the right of appeal on account of non-filing the application in the suit and the Court below ought to have rejected the application on that ground alone. On the other hand, learned counsel for the respondent contended that it is only a technicality, whether it is by way of IA and EA, the purpose was to ascertain the mesne profits and, therefore, no objection can be taken to the impugned order. Learned counsel also contended that the suit for recovery of possession has attained finality as the Hon’ble Supreme Court has also confirmed the order, except granting time. 3. The issue raised here is that the petitioners lost the right of appeal due non filing of the IA. In the circumstances, the impugned order is set aside. The respondent is at liberty to move an application before the Court below and on such an application being filed, the Court below to dispose of the same expeditiously in accordance with law, by make using the material already available on record. 4. In the result, the civil revision petition is allowed. No costs. _____________________ Ghulam Mohammed, J Dated: 16-4-2010 Nrg.