MADHUSUDAN CHEMEL Vs. RAMAMANI MISRA AND OTHERS

JUDGEMENT

(1.) The short question that arises in this appeal for consideration is whether it is mandatory for the court to issue notice to the parties to appear before the Commissioner when he is appointed under Order 26 Rule 18, Civil Procedure Code and in absence of such notice whether the report of the Commissioner become vitiated if the Commissioner also does not issue notice to the parties.

(2.) Shorn of details, the facts leading to the appeal are that the appellant was defendant no. 6 in suit for partition of 3 plots of land plot nos. 953, 954 and 952/3013 of an area totalling 74 decimals. The appellant had purchased an area of 12.5 links by registered sale deed on 30.3.1965 from one Suki Bewa who was the original plaintiff and her son Pahali Behera the defendant no. 6. The preliminary decree was passed on 19.7.67 but however no application for final decree had been filed. Respondent no. 1 purchased 12 decimals of land out of plot nos. 953 and 954 on 25.9.1972 from the legal representatives of Suki Bewa i.e. Pahali Behera and one Uma Dei, the respondent no. 7, being the daughter's daughter of Suki. An application for final decree was made by the respondent no. 1 and during the pendency of the proceeding, an application was filed by the respondent no. 6 to have purchased 10 decimals of land by two sale deeds i.e. Exts. 3 and 4 respectively dated 30.7.1969 and 1.8.1969. In the final decree proceeding both the respondent nos. 1 and 6 were added as parties and direction was issued to the Commissioner by order dated 16.2.1974 to make allotment of the suit property by allotting 12'5 links to the appellant, 10 decimals to the respondent no. 6 and 12 decimals to the respondent no. 1. Besides, the direction was also to allot 20 decimals in respect of defendant no. 2-respondent no. 2 whose shares subsequently were purchased by the respondent no. 1 and to allot 17 decimals to defendant no. 3-respondent no. 3, Nandi Dei. In the order while a writ was issued to the Commissioner as above, no direction was issued to the parties to appear before the Commissioner. The Commissioner submitted the report on 10.10.74 which was accepted by the court on 12.10.74 making the decree final. The appellant being aggrieved by such order has preferred this appeal.

(3.) Mr. R.N. Mohapatra the learned counsel for the appellant urges that since the direction as required under Order 26, rule 18, C.P.C. was not issued by the court to the parties directing them to appear before the Commissioner, and the Commissioner also did not issue any notice to the parties to appear before him, the entire proceeding before the Commissioner and the order of acceptance of the report as also the final decree have become vitiated and have to be set aside. On a reference to the Commissioner's report it is seen that he has mentioned about issue or notice to the parties and to have made the allotments after such notice and further in the list of return of documents appended to the report he also mentioned about the receipts of notices but however while as regards the other items of documents returned, namely, Parawana. judgment and copy of the order, settlement khatian, etc. the number of pages so submitted are mentioned, yet as against the entry regarding receipt of notices, it has been left blank. There are also no receipts of notices on record. The appellant had, after the final decree, filed a petition under Order 9 Rule 13, C.P.C. registered as Misc. Case No. 67 of 1975 to set aside the decree on the ground of non-receipt of notice in the final decree proceeding where he also urged that no notice had been issued by the Commissioner while making the allotments. The Miscellaneous Case was dismissed by order dated 18.1.1977 after which an appeal was carried to this Court in Miscellaneous Appeal No. 106 of 1977 which was dismissed on 31.6.1978 with the observation that the points raised therein are available to be raised in the present appeal. Thus it appears that the appellant has been raising the question of non-receipt of notice from the Commissioner throughout and hence inspite of the fact that the report of the Commissioner has mentioned of his having issued notices to the parties, yet since the list of return of documents submitted to the court does not show any receipts of notices and there are in fact no such receipts on record, it leads to hold that in actuality no notice was issued by the Commissioner while making the allotment.