(1) These petitioners filed i a. No. 352 of 1963 praying for review of the order dated 23 - 11 - 1960 which had been passed bv the learned subordinate judge snkakulam. In o. S. No. 18 of 1957 fixing the amount of mesne profits in the course of enquiry in the final decree stage after the preliminary decree had been passed. That order was passed after considering a report which had been made by a commissioner to ascertain mesne profits. The defendants also file i. A. No. 188 of 1963 for appointing another commissioner or a fresh enquiry into the mesne profits. The learned subordinate judge heard these petitions and' dismissed them by a common order dated 21 - 10 - 1963. In that common order certain other interlocutory applications also were disposed of but we are not' concerned with those other i. A. 's. Against the dismissal of i a no 352 of 1963, the defendant, filed c. R. P. No. 1808 of 1963 and against the dismissal of i. A. No 188 of 1963. The defendants filed c. R. P. No 595 of 1964 both these civil revision petitions, being against a common order, were heard t? gether by common consent of advocates on both sides and this common order it passed accordingly. For convenience. I am hereafter referring to the various parties by their denominations in the two i. As. The relevant facts necessary for disposing of these two civil revision petitions are as follows. The two respondents i. E. Petitioners in each of these revisions, were the plaintiffs in o. S. No. 18 of 1957 a preliminary decree was passed on 4 - 2 - 1959 th petitioners (defendants) filed a s no 42 of ,959 in this court against that preliminary decree. When that appeal was pending, they also applied tor an interim stay and this court (seshachalapathi, j) passed an order dated 29 - 10 - 1959 granting stay of the passing of the final decree alone, subject to the conditions that the enquiry into mesne profits awarded m the prilimmary decree should go on and that, after the mesne profits were ascertained by the lower court within two months of that date the petitioners should deposit half the amount so ascertained and furnish security for the offier half. The
"commissioner, after 'enquiry, putin ' a report, to the effect that the, mesne profits came to rs. 11,056/ -. The learned subordinate judge passed an order dated 23 - 11 - 1960 fixing the mesne profits at rs. 91,7f4 - 22 np. , on that date, the order of this court dated 29 - lc - 1959 staying the actual passing of the final decree was in force. Therefore, no final decree could be passed. The defendants failed to fulfil the conditions imposed in the stay order. The stay order ceased to have effect becaus if contained a default clause, that stay would stand vacated in case of default by the defendants, who had obtained the stay, so, the lower court could have passed a final decree soon after 23 - 1 - 1961. Due to some petitions being filed by the defendants, ultimatply, a final, decree was passed, only on 6 - 3 - 1964 by the lower court. Meanwhile various, things had hppened, on; 10 - 7 - 1961. The high, court disposed? of a. S. No 482 of 1959 confirming the deefee of triaf court with some slight modifications. The defendants filed a review petition i. A,, no 352 of 1963. On 7 - 9 - 1963 praying for reviewing the order dated 23 - 11 - 1960. Thus, the review petition was tiled nearly four years after the order which it sought to get reviewed was passed and more than two years after a. S. 482 of 1959 wa disposed of. The review petition was dismissed on 21 - 10 - l963. I a. No, 188 of 1963 was also filed in 1963. Subsequently, defendants 1 to - 3 obtained certified copies of final judgment and decree on 14 - 4 - 1954. More than one year later, on 14 - 6 - 1965, they filed an appeal against the final decree. They also filed c. M. P. No. 5237 of 1960 under s. 5 of the limitation act to condone the delay of 365 days in filing the appeal against the final decree. After. Hearing the advocate, a bench of this court consisting of satyanarayaua raju, c. J. (as he then was) and kumarrayya j. , passed an order dated 3 - 8 - 1965 dismissings that application. As a result the memorandum of appeal became barred by limitation. The learned judge in the order in the c. M. P. Have stated as follows : - 'in the result, the petition for condoning the delay is dismissed with cost, under s. 63 (2) of the andhra court fees and suits valuation act, it is provided that where a memorandum of appeal is rejected on the ground that it was not presented within the time allowed, by the jaw of limitation, one half of the fee shall be refunded. The petitioners are, therefore, entitled to the refund of the court fae paid on the memorandum of appeal which will be rs, 1513/ -."
the order,for refund of co art - fee was passed on the basis that the appeal had bien rejeccei. So, there was an implied order rejecting the memorandum of appeal. C r. V. No. 1808 of 1963. At the time whan the review petition was filed, final decree had not been passed. No appall had been preferred against it. So, the review petition was entertained lawfully by the lower court under order
47 rule 1 c. P, c. By the time, the review petition was disposed of on 2' - 10 - 1963, no final decree had been passed also; the final decree was passed on 6 - 3 - 1964. Therefore, it was open to the lower court to lawfully pass an order on the review petition the lower court but an appeal against tat final was preferred and rjected by this court. The question is whether the order of the lower court refusing to review the order dated 23 - 11 - 1960 can be set aside by this court now at this stage in revision. Civil revision petition was pending in this court against the order the lower court dated 21 - 10 - 1963 refusing to review the order dated 23 - 11 - 1960, final decree dated 6 - 3 - 1964 was lawfully passed by the lower court as the stay order dated 29 - 10 - 1959 had become vacated the final decree itself has become final and conclusive, because an appeal which had been to against it had been rejected. As the final decree has become effective and is m force now, having been lawfully passed and an appeal against it having been rejected as not presented in time, it is not possible to effectively alter or modify the order dated 23 - 11 - 960 which was only an order fixing the amount as a preliminary step for passing the final decree. In thungabhandra indusries v. Government of andhra pradesh, it was observed as follows: -
"the crucial date for determining whether or not the terms of order xlvii rule 1 (1) c. P. C. Is the date when the applicatin for review is filed. If on that date no appeal has been failed it is comptent for the court hearmg the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appal it self has been disposed of, the jurisdiction of the court hearing the review petition would come to an end '' in ramanna v. Sreeramulu the question arose whether, on dismissal of a second appeal under the
provisions ef order 41, rule 11 c p c before the issue of notice to the respondent, an application for amendment of the decreelis to the high court which had dismissed the second appeal or to the lower court against whose judgment the second appeal had been filed a division bench of this court held as follows: (at page 309) we cannot therefore, see any justification for the argument that there is a difference in essence between a judgment dismissing an appeal under order 41, rule 11 civil procedure code, and that made under order 41.
Rule 37, civil procedure code in both the casse, the judgment of the appellate court adjudicates upon the rights of the parties, though in one case the manner of disposal is consise of the speedy and in the other it takes a more elaborate form and longer time. Whether the appeal is dismissed in limine against the ex parte respondent or dismissed after hearing the respondent, it is the decree of the appellate court that governs the rights of the parties."
In the present case also, an appeal against the final decree was preferred and has been disposed of. Though the disposal was on the ground that it was barred by limitation as a consequence of the petition (c. M. P. No. 5237 of 1965) for excusing the delay being discussed. Therefore, even if the review petition had been filed against the final decree itself, in view of the above decision. Would not be competent for this court to pass an order reviewing the final decree now, as the appeal which was preferred against the final decree has already been disposed of. In this case, the review is not even against the final decree but on an order passed in the final decree proceedings before the actual final decree wax passed. Therefore, it is not possible now, under the law, to allow the - petition and pass an order of review. So, i decline to interfere with the order of the lower court. The learned advocate for the petitioners (defendants) has contended that facts, the lower court's order is not correct. 1 do not find any scope or need to go into the facts of the case on merits i, therefore, dismiss c. R. P. No. 1808 of 1963 with costs c. R. P. No. 595 of 1964. What i have stated above regarding c. R p. No, 1803 of 1963 appliee ot this revision petition also. As there is a final decree which has become concltusive. It is not possible and it will serve no usaiul purpose to appoint a fresh commissioner. Therefore i see no reason to interteie with the oider of the lower court in this revision petition also i dismiss c. R. P. No. 595 of 1964, there shall be no order as to costs,