The High Court · 2025

:SRI. NAZEER KHAN SRI S GANESHRAO The Court made the following: ORDER HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA CIVIL REVISION PETITON No. 918 0F 2019 ORDER: Petitioner herein is plaintitf u,ho filed O.S.No. 17 of 1985 on lhc lllr. ol rhe Addirional Disrricr Judgc. .Adilabad lor partition and scparate possession of plainl schedule property i.c. land in Survey No. 75/A to the cxtent of Acs.7.Og guntas and the land in an exlent of Acs.6.O5 guntas in Survey No. 76/.4 in Gimma Village, K Taluq, Adilabad District, ctaiming half share. The learned Additional Disrrict Judge passccl a preliminary decree for partition granting half share to plaintiff. Aggrieved thereby, respondents - defendants carried the matter in Appeal belorc this Court i.e. A.S. No. 799 of l9aa. 2. This Court b,v judgmer-rt dated 21.0g.20(12 modifiecl thc decree of the trial Court and direc[ed that plaintiff is entitiecl to only 1/4d, share in all the plaint schedulc properties instead of 1/2 share ri,hich was granted by the trial Courr. plaintilf had taken out I.A.No. lS lg of 2OO3 before the Court below for passing final decrec, hou,evcr the said Application was dismissed for default on 24.Og.2006. Thereafter, she had taken out I.A.No. 366 of 2014 under Order XXVI Rule 13 CpC. for passing hnal decree by appointing an Advoca[e commissioner. This Application q.as dismisscd by thc learned I Additional I I ; I 2 'a: District & Sessions Judge' Adilabad uide order dated 14.11.2018, impugned in this Revision' observing that this Application is barred by principles of res judicata as plaintiff cannot maintain similar petition again' Aggrieved plaintift is before Lhis Court in this Revisron' thercbY, Learned counsel for petitioner Sri Nazeer Khan 3. submits that l A No 1518 of 20O3 was not decided on merits and it was dismissed for clefault as his client failed to pursue the same due to ill-health' hence' the subject Application cannot be considered as barre d by res judicata' I t is submitted that when learned 'iudge observed that the Advocate- Commissioner could no1 execule thc warrant in its I rue spirit' he ought to have directed for execution of warranl in terms of preliminary decree and to pass final decree'

4. Heard Sri S Ganesl'r Rao' learned counsel for respondents - defendants' In the conLcxt of thc arguments advanced by 5. learned counsel on cither side' it is appropriate to have a look at the order under Revision' It is observed therein that in I A No' 1518 of 20O3, a detaiied enquiry rn'as conducted and on hearing boththesides,Advocate'Commissionerwasappointedbyorder dated 16.03.2004, pursuant to which' a report was also submitted- The Advocate Commissioner instead of affecting -\1 l' I I I -7. J partltion as mandated in the commission rvarrant returncd the warrant r.vith his report stating that only in Survey No. 75, dcfendants are in possession and cultivating to the extent of Acs.8.10 guntas and on enquiry and information given by both the partics, defendants are not in possession in 76/A at the spot and this observation of the Commissioner is totally unu,arranted since his 1ob effect parrition and Lo confining l-lmself to allot respective shares thc job Suney No. is only to h-rslead of Advocate- i ndicated, AS Advocate Commissioner rvithout executir-tg the i.l,arrant returnccl the same, hencc, it cannot bc said the Commissioner executcd the warrant as per the scope. This court does not find any fault in the observation made by the Iearned Judgc for, it plaintiff is aggrievcd, thc remedy available to her is to seck restoratron of LA. No. 1 5 18 of 2O03 or to preler revision againsr, the default order datcd 24.Oa.2006, but not by filing another Application for the self same relief. Admittedly, as could be seen from the material on record, I.A.No. l5lg of 2OO3 underwent as many as tu,enty adjournments as such, it cannot, by an1, stretch of imagination, be said that the said Application is dismissccl for delault. 6 A plain reading of Order IX Rule 9 CpC makes rt abundantly clear that petitioner cannot maintain similar I I I I t I 4 {i. ,.\ petition in respect of same cause of action and she can only take steps to set aside the dismissal order Order IX Rule 9 applies to Interlocutory Applicalion with equal force in view of Section 141 which postulates that the procedure Provided in this Code in regard to suit shall be foilowed' as far as it can be in anY Court of civil mad.e applicable, in all proceedings jurisdiction 7 Reviston, pendencY between Furtfcr, as is cvident from lhe order under petilioner hard takcn a ground that during the of I.A.No. 15i8 of 2003' a sel-tlement was held herself and defendants in rcspect of sharing the property out of the Court' as such' on the advice of elders [o maintain good relationship' she kept quiet and failed to pursue the matter' It clearly shours lhal petititrtrer is in the knorl ' of the default ordcr dated 24 'O8 '2006 and kept quiet to negotiate settlement. When it failed' she took her ou'n time and came up tn 2Ol4 i.e after lapse of eight years with this APPlication decree. She did not even make an neariY, to Pass final endeavourtoexplainthesaicldelay.Inthelightofthesameand t inviewoftheprovisionstatedsupra,itCansafelybeheldthat I.A.No.366of2o|4isbarredbytheprincipleofresjudicataas petitioner cannot maintain similar petltion again' as has already been observed by the learned Judge' This Cor-rrt does not find a/ / f I I t any e rror in the order u nder Re vision, hence, ther same rs liable to disrnissed 8 No costs.

9. The Civil Revision petition is accordingly, dismissed Consequently, Miscellaneous Applications, if any shall s tar-r cl closed, //TRUE COPY// A SD/.M.NAGAMANI TANT REGISTRAR {secrou orrl To, 1 The Additional l\/otoor Accident Claims Tibunal -cum- Additional district Judge, Adilabad One-CC to SRI NAZEER KHAN Advocate [OPUC] One CC to SRl. S.GANESH RAO, Advocate [OPUC] Two CD CoPies

4. tI/PSL w .t ? f I r r l-1 : ,.). 10 SEP zffi :, OF S PAT i: \,i * t\ HIGH COURT DATED:02t0tt2O2S ORDER CRP.No.91B ot 2019 DISMISSING THE C.R.P. G o\$u[ Y{ i#rw