THE HONOURABLE SRI JUSTICE B.PRAKASH RAO Dated 22nd July, 2010 C.M.A.No.87 of 2006 and C.R.P.No.5487 of 2005 Between: C.M.A.No.87 of 2006 Sana Narayana Murthy …Appellant And Mulagada Bal Baskararao …Respondent C.R.P.No.5487 of 2005 Mulagada Bala Bhaskaara Rao …Petitioner And Sana Narayana Murthy …Respondent THE HONOURABLE SRI JUSTICE B.PRAKASH RAO C.M.A.No.87 of 2006 And C.R.P.No.5487 of 2005 COMMON ORDER: The above appeal is at the instance of the plaintiff filed under Order 43 Rule 1 of the Code of Civil Procedure inter alia seeking to assail the correctness of the order of remand made by the lower appellate Court in a regular first appeal filed against the judgment and decree of the trial Court. The suit is one for comprehensive relief of possession and mandatory injunction, which has been contested and was ultimately decreed by the trial Court. In appeal, the lower appellate Court having found that there is an identity dispute, and therefore, it necessitates for making an exercise for local inspection for the purpose of identifying the properties as claimed from both sides, allowed the appeal and the matter was remitted back to the Court below for fresh disposal, on merits and in accordance with law, apart from giving a direction to appoint an Advocate Commissioner for the purpose of local inspection. Hence this appeal. In the other revision, which has been filed by the defendant against the order rejecting the application filed for appointment of an Advocate Commissioner under Order 26 Rule 9 of the Code of Civil Procedure in pursuance of the directions given in the order of remand passed by the appellate Court in A.S.No.35 of 1999 dated 8-8-2005, which is assailed in the above connected appeal in C.M.A.No.87 of 2006. The Court below rejected the said application mainly on the ground that nothing can be elicited by any such exercise and therefore it will be a futile one. Hence this revision. Having heard the counsel on either side and on perusal of the material, it is seen from the record that there is no serious dispute in regard to the fact that there exists an identity dispute in regard to the subject matter, and therefore, the lower appellate Court has rightly allowed the appeal making a remand in A.S.No.35 of 1999 for making an exercise for the purpose of local inspection and identity the property. Merely because no merits having been gone into and no findings have given either way in spite of the categorical finding of the trial Court, that itself cannot be a ground to assail the said order of remand, and especially, when every other aspect on merits would depend upon the very decision and the finding on the identity. In view of the above, I do not find any merits in the above appeal and the C.M.A is accordingly dismissed. No costs. Coming back to the revision, the application filed by the defendant which is dismissed by the Court below on the ground that nothing can be elicited by any such exercise, goes quite contrary to and in the teeth of the directions given by the appellate Court in the order of remand. Normally, the Courts below should adhere to the directions given by any appellate Court while remanding the matter, and more so, when the direction is specific. Therefore, any amount of consideration on merits and coming to its own finding may not be warranted. In the circumstances, the revision is allowed and the application filed by the petitioner defendant in I.A.No.237 of 2005 in O.S.No.176 of 1990, on the file of Junior Civil Judge, Sompeta is allowed and the trial Court is directed to appoint an Advocate Commissioner for the purpose of localizing the dispute only with regard to Ex.A.4 and note down the physical features. It is also made clear that both the parties are at liberty to file work memos. No costs. __________________ B.PRAKASH RAO,J Date: 22-07-2010 Grk THE HONOURABLE SRI JUSTICE B.PRAKASH RAO C.M.A.No.87 of 2006 and C.R.P.No.5487 of 2005 Dated:22-07-2010