S. S. RAMCHAND Vs. DHARMENDRA KUMAR

JUDGEMENT

(1.) THE appellants have preferred this appeal against the orders dated 27 -6 -86 passed by Second Addl. Judge to the Court of District Judge, Jabalpur, in M.J.C. No.16 of 84 whereby their application, dated 16 -2 -84. purporting to be under order 9, rule 13 CPC for setting aside the exparte final decree in Civil Suit No. 14 -A/81 was dismissed.

(2.) A perusel of the record and the submissions by the learned counsel on both sides echo the clattar of the warring parties in this civil litigation which originated in the year 1952. It seems to be a two generations suit yet the controversies vertically or horizontally are going on.

(3.) FOR effecting the partition by meets and bounds and to handover' possession to each of the respective parties, Shri G. P. Choube, Advocate was appointed as Commissioner who submitted his report on 1 -7 -68. S. S. Sahiblal preferred objections to the said report which was dismissed in default, as per orders dated 6 -2 -69 passed in M.J.C. No. 20 of 68. The trial Court refused to restore the objections filed. S. S. Sahiblal then preferred M (F)A. No. 71/69. Sahiblal after obtaining preliminary decree as finalized by the Supreme Court had applied for possessing a final decree for partition. The parties were directed to file affidavits on 4 -10 -83 and the Sahiblal was also expected to file affidavits in support of the objections to the Commissioner's Report, containing proposal for final division of movable and immovable property. The trite Judge waited for the said Sahiblal and his counsel till about 4.0' clock and ultimately passed an order to the effect that Sahiblal's objections to the Commissioner's report are dismissed in default. All the claimants had effected a compromise with respect to the division of property amongst themselves, and plaintiff was not a party to the compromise. The trial Court held, that the compromise was lawful and accordingly directed the same to be recorded and a decree in terms of the compromise be passed. This order was the subject matter of the Civil Revision No. 278/69. By a common order, the Civil Revision No. 278/69 and M (F)A No. 71/87 were decided, holding, that there was sufficient cause made out by Sahiblal and he was entitled to have his objections to the report restored to file. Pausing here, it may be mentioned that in Paras 4, 6 and 7, there are certain observations to the effect that further proceedings without suitable amendment of the perliminary decree will be infructuous at present. With those observations, he matter came back to the trial Court to take into con8ideration the aforesaid observations by the High Court and to pass a final decree.