M SIVAJI Vs. M KURESUM

JUDGEMENT

(1.) ORDER passed on 23.8.2002 by the Civil Judge (Senior Division), Berhampur in Final Decree Title Suit No. 120 of 1983 is the subject matter of dispute in this civil revision. Plaintiff in that suit is the petitioner whereas the defendants are the opposite party members. Admittedly a preliminary decree has been granted in that suit, inter alia, for the relief of partition. As per the impugned order learned Civil Judge rejected the objection raised by the petitioner to the acceptability of the report of the Amin Commissioner relating to allotment of shares for the purpose of final decree, hence this revision.

(2.) IT be noted that, petitioner had also earlier approached this Court in Civil Revision No. 526 of 2001 against the order passed on 19.9.2001 in the self -same suit. By that order the Court below had denied opportunity to cross -examine the Amin Commissioner. On 5.2.2002 this Court disposed of that civil revision by setting aside the impugned order and directing the Court below to afford opportunity of hearing in terms of the provision in Order 26, Rule 14, of the Code of Civil Procedure, 1908 (in short, 'the Code'). As it appears from the impugned order, the Court below complied with that direction and provided opportunity to the petitioner to cross -examine the Amin Commissioner so also to adduce his evidence as against the validity/acceptability of the report of the Amin Commissioner.

(3.) IN course of the hearing of the civil revision learned counsel for the opposite parties raised a contention that in view of the ratio in the case of Digambar Satpathy and Ors. v. Shyamsundar Das and Ors., 77 (1994) CLT 375, a civil revision is not maintainable against an order of the impugned nature inasmuch as the report of the Amin Commissioner after being accepted forms part of the decree and the final decree is an appealable order. In that respect learned counsel for the petitioner referred to and relied on the cases of Chaitan Das v. Smt. Purnabasi Pattnayak and Ors., AIR 1988 Orissa 52; and Shankar Balwant Lokhande (dead) by L.Rs. v. Chandrakant Shankar Lokhande and Anr., AIR 1996 SC 1211, in support of his contention on maintainability of Civil Revision. In reply learned counsel for the opposite parties also relied on the case of Hameed Joharan (dead) and Ors. v. Abdul Salam (dead) by L.Rs. and Ors., (2001) 7 SCC 573 : 2001 (6) Supreme 55.