2010(4) ALL MR 319
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.V. MOHTA, J.
Shashikant Vasudev Mahale Vs. Madhukar Vasudev Mahale (Since Deceased Through Lrs.)
Writ Petition No.10338 of 2009,CAW/3097 of 2009
15th March, 2010
Petitioner Counsel: Ms. GAURI GODSE
Respondent Counsel: Mr. UDAY WARUNJIKAR,Mr. RAHUL MORE
(A) Civil P.C. (1908), S.2(2) r/w. O.20, R.18(2), O.26, R.14(3) - Application for setting aside appointment of Commissioner - Suit for partition - Plea that once Commissioner is appointed and due notices were given to Advocate, case of setting aside appointment of Commissioner cannot be considered - Held not tenable in the facts and circumstances of the case.
The party can challenge even the appointment of Commissioner basically in a proceeding, where the role of Commissioner is to proceed further in view of the preliminary decree passed in the partition suit between the parties. In such matters, the notice to the parties is also necessary, because ultimately they are the persons concerned, on whose instructions the Advocate can proceed or contest the petition. In a situation where an application was made referring to the Gift Deed and as the same for whatever may be the reason, unable to place before the Commissioner and as the Court also accepted the Commissioner's report without considering the submissions so raised with regard to the Gift Deed, the order so passed causes injustice to the concerned parties, whose objections were not considered properly. Therefore, it is necessary that the Court Commissioner's report, after preliminary decree, needs to be tested from every angle and if there is any kind of objection it has to be considered by the Commissioner in the report, and later on by the Court also because, ultimately the Reports becomes final for all the purposes. The Court if confirms the same, it becomes final decree. The impugned orders are not final decree as contemplated under Section 2(2) read with Order 20, Rule 18(2) and Order 26, Rule 14 of C.P.C. The second stage is not yet over. Therefore, for proper adjudication of the dispute so raised, a detailed inquiry and reasons are necessary before confirming the Commissioner's Report which will be culminated in the final decree in such Suit for partition. [Para 6,7,9]
(B) Civil P.C. (1908), S.97 - Modification/Amendment of decree - After passing of preliminary decree, affected party can apply for modification/amendment of decree by placing material on record to justify - Same is not totally barred under S.97. (Para 8)
JUDGMENT
JUDGMENT :- Rule, returnable forthwith. Heard finally.
2. The petitioner (original defendant no.2) has invoked Article 227 of the Constitution of India and thereby challenged initially orders i.e. Exhibit 33 (Commissioner's report) and Exhibit 35, and later on by an amendment to Ex.36 also, whereby the challenge is to the appointment of Commissioner and to consider the Gift Deed of 13.06.2007 before confirming the Commissioner's Report for the respective shares in the properties.
3. The learned counsel for the respondents submits that by the Order dated 17.09.2009 on Exhibit 33, the Court has confirmed the Commissioner's Report and, therefore, in view of Order 26, Rule 14(3) of Code of Civil Procedure (CPC) that becomes decree for all the purposes and, therefore, the present writ petition as filed is not maintainable.
4. Based upon that Order, the Court has rejected the Application (Exhs.35 & 36) by Order dated 24.09.2009.
5. First of all, these applications as filed by the petitioner are for different purposes. Even though the basic prayers are for the challenge to the appointment of Commissioner but significant prayer just cannot be overlooked referring to the rights based upon the Gift Deed. Without sufficient reason to the contents of the application, the Court has accepted the Commissioner's report as it is, without even referring to prayer (2) of Exhibit "35".
6. The submission that once the Commissioner is appointed and as due notices were given to the Advocate, the case of setting aside the appointment of Commissioner itself just cannot be considered, in my view, is not correct. The party can challenge even the appointment of Commissioner basically in a proceeding like this, where the role of Commissioner is to proceed further in view of the preliminary decree passed in the partition suit between the parties. In such matters, the notice to the parties is also necessary, because ultimately they are the persons concerned, on whose instructions the Advocate can proceed or contest the petition. In a situation where an application was made referring to the Gift Deed and as the same for whatever may be the reason, unable to place before the Commissioner and as the Court also accepted the Commissioner's report without considering the submissions so raised with regard to the Gift Deed, this, in my view, causes injustice to the concerned parties, whose objections were not considered properly.
7. Even otherwise, the issue of Gift Deed is not of recent one. The Gift Deed is of 13th June, 2007. Therefore, it is necessary that the Court Commissioner's report, after preliminary decree, needs to be tested from every angle and if there is any kind of objection it has to be considered by the Commissioner in the report, and later on by the Court also because, ultimately the Reports becomes final for all the purposes. The Court if confirms the same, it becomes final decree.
8. There is no total bar even under Section 97 of Code of Civil Procedure that after preliminary decree, the affected party cannot apply for modification of the decree or amendment of a decree by placing the material on record to justify the same.
9. The impugned orders are not final decree as contemplated under Section 2(2) read with Order 20, Rule 18(2) and Order 26, Rule 14 of C.P.C. The second stage is not yet over. Therefore, for proper adjudication of the dispute so raised, a detailed inquiry and reasons are necessary before confirming the Commissioner's Report which will be culminated in the final decree in such Suit for partition.
10. In the present facts and circumstances, the impugned order by which he Court has confirmed the Commissioner's Report and, therefore, that order itself amounts to decree, is not correct. Order 26, Rule 14 of Code of Civil Procedure provides that at first stage the Court must confirm the Report and having once confirmed the same, it shall pass a decree in accordance with the same. Therefore, the Court has, in the present case, without referring to the submissions/the contents of those applications in detail, has just confirmed the Commissioner's report. Admittedly, the decree is not yet passed.
11. For all further purposes, even for challenging the final decree, the limitation will commence from the date of the decree drawn. In my view, therefore, this is proper stage where the parties, as aggrieved by the Commissioner's report and specially in view of those Applications filed and pending before the Court, can challenge and agitate the issue for proper adjudication. In such matters, it is necessary for the Court to pass detailed order dealing with all the contentions raised in the applications so that the matter can be adjudicated finally at this stage itself.
12. Resultantly, keeping all points open, I am inclined to set aside the orders dated 17.09.2009 (Exhibit 33), 24.09.2009 (Exhibit 35) and (Exhibit 36). It is observed that the learned Court to decide all these applications after giving full opportunity to both the parties, preferably within four weeks from the receipt of the copy of the order.
13. The Petition is allowed accordingly. No costs.
14. In view of above, no separate order on C.A. No.3097/09 is necessary and it is disposed of accordingly.