L SRINIVASAN CHETTIAR Vs. L SANTHANAM CHETTIAR

JUDGEMENT

(1.) DEFENDANT in O.S.No.162 of 1980, on the file of Subordinate Judge, Chidambaram, is the revision petitioner.

(2.) A preliminary decree for partition was passed on 27.3.1986, to partition plaint A and B Schedule properties. As per the"preliminary decree, plaintiff was given half share in Items 1 to 14, 18 and 19 in "A" Schedule, and one share in "B" Schedule Item 55 and an iron safe. Pursuant to the preliminary decree, an application was filed for the passing of a final decree. On that, a Commissioner was deputed to measure the properties and to recommend the allotment. The Commissioner filed his Report on 21.11.1994. Various objections were raised by both parties.

(3.) I do not think that the revision under Sec.115, C.P.C. is maintainable against the impugned Order. Sec.75 of the Code of Civil Procedure which deals with incidental proceedings, empowers the Court to issue commission for various purposes. One such purpose is to effect a partition. O.26, C.P.C. deals with the procedure for issuing Commission. 0.26, Rule 10, C.P.C. deals with the Commissioner's local inspection.O.26, Rules 13 and 14 deal with "Commissions to make partitions. " Under O.26, Rule 10, C.P.C, the report of the Commissioner is declared as part of the evidence in the case. It further provides that if the Court is not satisfied with the proceedings by the Commissioner, it may direct such further enquiry as it deems fit. As I have said already, 0.26, Rules 9 and 10, C.P.C. deal with "Commissions for local investigations". Rules 13 and 14, C.P.C. of O.20, deal with a specific provision for partition. 0.26, Rule 14(2), C.P.C. provides that "the Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same." Sub-rule (3) provides that "Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the court sets aside the report or reports it shall either issue a new commissioner or make such other order as it shall think fit. (Itlalics Supplied).