SUSILA BALA DASI Vs. KARUNA BALA PODDAR

JUDGEMENT

(1.) This Rule is directed against Order No. 51 dated May 8, 1970, passed by the learned Subordinate Judge, Second Court, Howrah, in a suit for partition. In appears that a preliminary decree for partition was passed by the learned Judge on Oct. 9, 1969, declaring the shares of the respective parties. There was a further direction on the Defendants, the Petitioners before us, to apply within two months from the date of the decree for appointment of a Commissioner for the purpose of assessment of valuation of the Plaintiff's share in the suit property and the said Defendants were directed to purchase the share of the Plaintiff on the valuation to be fixed by the Commissioner within a month from the receipt of the report in Court. There was a default clause provided therein to the effect that if such application was not made within the period allowed the Plaintiff would be entitled to effect partition of the suit property to the extent of her share by metes and bounds either amicably or by a Commissioner to be appointed by the Court. The Defendants did not apply for the appointment of the Commissioner within the time fixed by the Court and by a petition dated Jan. 20, 1970, applied for the appointment of a Commissioner for the purpose of assessment of valuation. There was a further petition filed on March 10, 1970, for extension of time provided in the said order for appointment of a Commissioner for the purpose of valuation. Both these applications were opposed by the Plaintiff. The learned Subordinate Judge on a consideration of the materials on record was of opinion that the provision for appointment of a Commissioner by the Defendants was not merely a procedural order as it was incorporated in the judgment and decree followed by a default clause. In that view, the said applications were dismissed as not maintainable by the order mentioned above. This Rule was obtained against this order.

(2.) After hearing the learned Advocates of both sides we are of opinion that the order complained of in this Rule cannot be sustained. It appears that a preliminary decree was passed in the partition suit and a final decree, was yet to be passed. Accordingly, the Court was in seisin of the matter. The provision for appointment of a Commissioner was really a direction on the application under Sec. 4 made by the Petitioners and accordingly, it cannot be strictly said to be a part of the preliminary decree. Accordingly, the provision of Order 20, Rule 3 has no application to the present case. The applications, accordingly, are maintainable. It appears that the learned Subordinate Judge has dismissed the applications on the question of maintainability and has not entered into merits. As we are of opinion that the applications are maintainable, it will be necessary now for the learned Subordinate Judge to consider the applications on merits.

(3.) The Rule is, accordingly, made absolute and the Order No. 51 dated May 8, 1970, passed by the learned Subordinate Judge, is set aside. The learned Judge will now Consider the application on merits. The Petitioners, however, will pay the costs of the Rule to the contesting opposite party No. 1, the hearing fee being assessed at 7 Gms. Let the records be sent down to the trial Court at an early date. Sankar Prasad Mitra J. - I agree.