S.J. Makhopadhaya, J.
1. The petitioners are Defendant Nos. 17 and 18 in the court below. They have challenged the impugned order dated 25th August, 1994 passed in Partition Suit No. 111/71 by the learned Munsif, I. Madhubani.
2. After the preliminary decree made in the partition suit, the survey knowing Pleader Commissioner was appointed. He submitted report. After hearing the objection of all die parties, by the impugned order dated 25th August 1994, the learned Munsif, I, Madhubani has accepted the report of the Pleader Commissioner, namely, Shri Madan Mohan Mishra and confirmed the same.
3. The defendants petitioners have challenged the aforesaid impugned order dated 25th August 1994, by which court below accepted and confirmed the report of the pleader Commissioner, Shri Madan Mohan Mishra; by filing the present Civil revision application.
4. The office of this Court by its stamp report has raised an objection regarding maintainability of the present civil revision application against such order. Counsels on behalf of Opposite Party Nos. 2, 3, 4 and 5 have also raised the question of maintainability of the present civil revision application-. According to the counsel for the Opposite Parties aforesaid, the civil revision application is not maintainable, the impugned order being final and having become a part and parcel of the judgment, the petitioners should have moved by filing appeal against the impugned order, after Final decree
5. According to the petitioners, the civil revision application is maintainable. The impugned order accepting the report of the Pleader Commissioner and confirming the same is independent in nature, prior to preparation of final decree, it cannot be stated to be a part of the judgment and thereby, according to them, the civil revision is maintainable.
6. Both the parties relied on different provisions of Civil Procedure Code to substantiate their argument and thereby justified their arguments.
7. For the proper appreciation of law, I feel certain provisions of C.P.C. are to be taken into note.
Section 2(2) of C.P.C. laid down the definition of 'decree', which includes preliminary decree as well as the final decree. Order XX Rule 18 of C.P.C. stipulates decree in a partition suit, Sub-rule (2) of Rule 18 thereto, provides the power to the court as to how partition of immovable property is to be conveniently made. It has been laid down therein that the Court may itself make such partition or separation conveniently. If there is any difficulty in making such partition or separation conveniently, then to pass only a preliminary decree declaring the rights of several parties interested in the property and giving such further direction, as may be required
It is at this stage, Order XXVI Rule 14 of C.P.C. comes into play. Under Rule 14 of Order XXVI, the Court is to appoint a 'Pleader Commissioner' to give report or reports, for the purpose of preparation of Takhta, Sub-rule (3) of Rule 14 of said Order XXVI, C.P.C. stipulates the power of the Court either to conform or vary with the report of the Pleader Commissioner and/or to set aside the report and appoint a new Pleader Commissioner for the purpose of passing such order as the court thinks fit.
8. From the aforesaid provisions of C.P.C. 'Section 2(2), Order XX Rule 18 and Order XXVI Rule 14', the following fact emerges:
i. in a partition suit, there may be preliminary decree as well as final decree and/or only a final decree, if the court itself in a position to curb out the Takhta; and
ii. in the case of preliminary decree in a partition suit, after the confirmation of the Pleader Commissioner's report, nothing remains except to prepare the final decree.
9. Now the question comes as to whether a person is to move in appeal against an order confirming the report of Pleader Commissioner, which is to be passed after the preliminary decree and/or the person is to move for revision under Section 115 of the C.P.C.
The only provisions laid down under C.P.C. to file appeal under Order XLIII Rule 1 and/or Section 96 of C.P.C. Order XLIII Rule 1 is very specific one, wherein details have been given as to against which type of order, a person may move in appeal under Order 43 Rule 1. The order passed by Court confirming the Pleader Commissioner's report, does not fall under the purview of any of the Clauses mentioned under Order XLIII Rule 1. Thereby, no appeal under Order XLIII Rule 1 is maintainable against an order passed by a Court confirming the report of the Pleader Commissioner.
So far as Section 96 is concerned, it stipulates filing of an appeal against a decree in accordance with law and the same is maintainable both against preliminary decree as well. as against the final decree, with respect to a partition suit.
10. Now the question is whether an appeal can be filed under Section 96 of C.P.C. against an order confirming the report of Pleader Commissioner or not.
According to the Opposite Parties, after such order confirming the report of the Pleader Commissioner, the moment the final decree will be prepared, the petitioner can move in appeal under Section 96 of C.P.C. The argument of the Opposite Parties is like this. As against a judgment in partition suit, no person can move in civil revision under Section 115 of the C.P.C. but he can move in appeal under Section 96 of C.P.C, only after the preparation of preliminary decree, similar is the situation, according to him, in the present case. It is argued that the moment, an order is passed confirming the report of the Pleader Commissioner, the same becomes a part and parcel of the judgment, thereby no person can move against the same in civil revision under Section 115 of the C.P.C, but he will have to seek the remedy by filing an appeal after preparation of the final decree.
11. I do not accept the aforesaid contentions, as advanced by the Opposite Parties, for the reasons given below;
In a partition suit, the judgment is delivered by the court giving therein the shares of one or other party. If in such judgment, the court is in a position to give Takhta Bandi, the decree is finally prepared, and a person against such final decree can move only in appeal. But in a case where a judgment is only delivered giving therein the share of one and other party, but for the purpose of Takhta Bandi, the matter is sent to Pleader Commissioner for report, only a preliminary decree is prepared. It is only after the report of the Pleader Commissioner, and only when the same is accepted as confirmed, the final decree is prepared.
Now in such situation, there may be cases in which when judgment is delivered by the Court in a partition suit showing therein the shares of different parties and the preliminary decree is prepared, a party may not be aggrieved. Thereby, a party if not aggrieved, will not file any appeal under Section 96 of the C.P.C. against such preliminary decree. But it may so happen, when the report of the Pleader Commissioner is accepted and confirmed, even after hearing the parties, a person may remain aggrieved against such Upon of the Pleader Commissioner, so far the same relates to the Takhta Bandi is concerned, though he may not be aggrieved against the share as laid down in the judgment/preliminary decree. In such a situation, can a person move in appeal, as suggested by the Opposite Parties.. According to me, it cannot move in appeal under Section 96 of C.P.C. even after preparation of the final decree.
12. Section 97 of the C.P.C. is very specific, wherein a clear stipulation has been made debarring a person from filing appeal under Section 96 after the final decree, if the person has not moved by filing appeal against the preliminary decree. Section 97 of C.P.C. reads, as follows:--
97. Appeal from final decree where no appeal from a preliminary decree. --
Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which they be preferred from the final decree.
From the aforesaid fact, it is evidently clear that if a person, if not aggrieved against the judgment/preliminary decree, he cannot agitate the matter relating to confirmation of Pleader Commissioner's report after the final decree, by filing appeal under Section 96 of C.P.C. in view of the provisions of Section 97 of C.P.C If the argument of the Opposite Parties is accepted, then it will amount to leaving the petitioners without any forum of remedy. On the basis of the argument of the Opposite Parties, the petitioners cannot file civil revision under Section 115 of the C.P.C. and under the law, as shown above, he cannot file appeal under Section 96 of the C.P.C., having not challenged the preliminary decree.
13. Now in the aforesaid background, the revisional jurisdiction of this Court under Section 115 of C.P.C. is to be tested. Section 115 of C.P.C. reads, as follows :--
115. Revision.--(1) The High Court may call for the record of any case which has been decided by Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where--
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to the Court subordinate thereto.
Explanation.--In this section, the expression 'any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.
From the plain reading of Section 115 of the C.P.C, it is clear that the case decided by a Court subordinate to High Court, in which no appeal lies, civil revision lies, if it is shown that there is a violation, as enumerated under Section 115 of C.P.C.
14. The aforesaid view of mine is also supported by the decision of Oudh Court, in the case of Prithipal and Anr. v. Bhaskar and Ors. ), reported in AIR 1926 Oudh 195. The relevant extract of the said case, is given below;--
These purport to be appeals from orders passed in a partition case. The Court had given a preliminary decree declaring the rights of the parties in the properties to be partitioned. It had then appointed a Commissioner for apportioning the property in accordance with the preliminary decree. The Commissioner made recommendation as to the property to be apportioned to each party. The parties objected to his proposals and the Court has accepted or varied these proposals. These appeals are from the order of the Court doing so.
The appeals were admitted by a single Judge of this Court, but we are of opinion that it was by some oversight. No appeal will lie against an order by a Court confirming or varying a report of a Commissioner to make a partition passed under Order XXVI Rule, 14 (3). Order XLU Rule. 1 provides from what orders an appeal shall lie and orders under Order XXVI, Rule. 14(3) find no place there. The ruling in Duthin Golab Koer v. Rahda Dulari Koer (1), has been cited to us in support of a right to appeal, That ruling merely decides that there should be a right of appeal against a preliminary decree in a partition case. It does not decide that there can be an appeal on a Court's decision regarding the apportionment made by the commissioner in pursuance of the preliminary decree. To allow an appeal in such a case would be tantamount to allowing an appeal against a judgment instead of against the decree based on a judgment. For these reasons we dismiss these appeals with costs.
15. I thereby hold that no appeal lies against an order passed by a Court accepting/confirming the report of the Pleader Commissioner, and the only remedy against such order, is revision, as envisaged under Section 115 of the C.P.C. Thereby, I bold the present civil revision application, as maintainable.
The parties may now advance their argument on the merit of the case.