R SATYA BAI LATE Vs. FT VENKAT RAO

JUDGEMENT

(1.) One late R. Satya Bai, wife of Rachakonda Ramgopal Rao, filed O.S. No.4 of 1975 in the Court of the District Judge, Adilabad. The suit was filed for partition and separate possession against 13defendants. During the pendency of the suit, there was a compromise between the plaintiffs and the defendants and a preliminary decree for partition in terms of compromise came to be passed on 13-7-1978 and the property as described in Schedule- I was allotted in the shares of the plaintiffs. Three items were kept jointly. Thereafter, the original plaintiff No.1 i.e., (late) Satya Bai died. Her legal representative filed LA. No.1268/91 for appointment of Court Commissioner for dividing the property by metes and bounds and putting the second plaintiff in possession of her share.

(2.) On presentation of the application for final decree, notice was issued to all the defendants. The claim of the second plaintiff was resisted by the 1st defendant alone. The first defendant-1st respondent herein filed counter and stated mat after passing of the final decree, the decree was modified by oral agreement. It was further contended by him that the decree was modified by oral agreement in 1985. But it stands superseded by one agreement dated 5-7-1992 and therefore submitted that nothing has to be done in execution of a decree and therefore LA. No.1268 of 1991 in O.S.No.4 of 1975 be dismissed.

(3.) The question posed before this Court whether the application filed under Order 26 Rules 13 and 14 read with Section 151 C.P.C. for appointmentof Court Commissioner to divide the joint property by metes and bounds and to allot separate shares as per the preliminary decree dated 13-7-1978 is maintainable or not?