MALAMMA Vs. DODDEGOWDA

JUDGEMENT

(1.) THIS revision under Section 115, cpc arises from the judgment and order dt. 21. 3. 1994 on an application under Section 151, CPC passed by the munsiff at Channarayapatna. The 3rd defendant namely the present respondent No. 1 filed the application under Section 151 before the civil Court in the matter of partition suit namely Original Suit No. 5/1967 in which a preliminary decree had been passed on 30. 10. 1972 and in which final decree had been passed on 30. 10. 1987. The respondent No. 1 urged that in the preliminary decree, a direction had been issued that so far as Sy. No. 29/9 measuring 2. 27 guntas is concerned, respondent had been the bona fide purchaser for value by virtue of sale-deed dated 26. 12. 1966 and therefore that land be alloted in favour of the vender of the land who sold that land to respondent No. 1. He submitted that the Deputy Commissioner to whom the decree had been sent for effecting the partition of plot No. 29/9 has notalloted to him his share as directed in this Court and thereafter final decree was passed which was illegal and so it required review and modification so that preliminary decree could be complied with. The court below considered the matter. It opined that the execution proceedings conducted by the Deputy Commissioner of hassan was not conducted for the partition according to the preliminary decree and it set aside the final decree thereafter. Feeling aggrieved therefrom, the present applicant-1st plaintiff has come up in revision under Section 115. '

(2.) I have heard Sri. Padubidri Raghavendra Rao, learned counsel for the revision petitioner and Sri. S. V. Narayanamurthy, learned Counsel for the respondents.

(3.) SRI. Padubidri Raghavendra Rao submitted that once the decree for partition has been sent under Section 54 to the Deputy commissioner and he has effected the partition and final decree has been passed, Civil court has no jurisdiction either to review that order or to set aside that, under Section 151 as once the matter has been sent to the Deputy commissioner, he acts as an independent instrumentality or tribunal or court and the Civil court has no jurisdiction to review. The proper remedy would have been to file an appeal. Therefore, the order impugned passed by the. Civil Court is without jurisdiction.