VISHWASRAO S O SHANKARRAO MEGHE Vs. USHABAI

JUDGEMENT

(1.) The petitioner, who was a judgment debtor before the Civil Judge, Senior Division, Wardha in Special Darkhast No. 4/79, has challenged the order passed by the Court on 18-1-1985.

(2.) The following facts will be necessary for appreciating the real controversy. The respondent No. 2 Hanumantrao is the son of the petitioner-Vishwashrao. Respondent No. 1-Son, Ushabai is the mother of Hanumantrao and wife of Vishwasrao. They constituted a joint Hindu family which owned extensive property-moveable as well as immoveable. Hanumantrao instituted a civil suit for partition and separate possession of his share in the family property. A preliminary decree came to be passed to the suit.

(3.) The final decree proceeding were taken after the passing of the preliminary decree. We are not much concerned regarding the division of the revenue yielding estate and other moveable property. It is an admitted position that a Commissioner was appointed by the Court for effecting the partition of the house. It appears that the Commissioner on giving opportunities to the contesting parties, finalised a Scheme for partition. The report of the Commissioner was put before the Court. Objections were raised to that report by the contesting parties. The Court ultimately passed an order overruling the objections raised by the present petitioner. It is an admitted position prevailing even to-day that the Court has not yet passed the final decree. Inspite of this, the Advocate appearing for the plaintiff decree-holder in the trail Court, presented a Regular Darkhast before the Court. The illegality has crept in right from the inception of this Darkhast and it pains tremendously to point out that an Advocate has contributed substantially to the final outcome. During the course of this Special Darkhast, the warrant of possession came to be issued by the Court directing the Bailiff to put the decree-holder in possession of the ground floor of the house, though in fact there was no decree to that effect. The Court not only issued the warrant, but on the other hand granted police help to the decree-holder, so that the possession could be effectively delivered to the decree-holder. With the help of police the Balliff put the decree-holder in possession of the property and a report was accordingly submitted to the Court.