MAHRAJOKUAR Vs. SUDAMIA DEVI

JUDGEMENT

(1.) This civil revision arises out of a partition suit. The impugned order dated 23-1-1986 recalls the order dated 13-11-1984 confirming the Advocate Commissioner's report for preparation of final decree, The court below has recalled the order on the ground of violation of Order XXVI Rule 18 of the Code of Civil Procedure relying upon a single Bench decision of this Court in Smt. Mandera Mukherjee v. Sachindra Mukherjee, AIR 962 Patna 211. Doubting the correctness of the said decision B. K. Roy, J. has referred the matter to a Division Bench by his order dated 18-1-1989.

(2.) The brief facts are as follows : The plaintiff instituted a suit for partition on 22-2-1967 and obtained a preliminary decree on 20-6-1979 defendant No. 11 filed a petition for appointment of an Advocate Commissioner for making partition of the properties and on 16-9-1981 an Advocate Commissioner was appointed without any direction by the C ourt to the parties to appear before the Advocate Commissioner as required under Order XXVI, Rule 18 of the Code of Civil Procedure. The Advocate Commissioner received the writ on 1-10-1981 and directed the plaintiff to file certified copy of preliminary decree fixing 3-10-1981 for issue of notices to the parties. On 3-10-1981 notice was issued to all the parties through registered post fixing 12-11-1981 for hearing and for local inspection. On a perusal of the order sheet of the Advocate Commissioner dated 14-1-1982, 2l-i-l982 and 14-2-1982 (Annexure-2) it appears that defendant Nos. 4, 5. 6, 8, 9 and 10 appeared before the Advocate Commissioner pursuant to the notice issued by him. The impugned order has been passed at the iastance of defendant Nos. 4, 5, 6, 8 and 10, all of whom appeared before he Advocate Commissioner. The Advocate Commissioner's report came for consideration by the court on 27-7-1984. The court fixed 7-8-1984, 9-8-1984 and 31-9-1984 for filing objection, but no objection was filed and on 13-11-1984 the Advocate Commissioner's report was confirmed without objection to the report. On 124-1985 a petition was filed under Section 151 of the Code of Civil Procedure by defendant Nos. 4, 5, 6, 8 and 10 who are opposite party Nos, 1 to 6, for recalling the order dated 13-11-19884 on the grounds (a) the copy of the petition for preparation of final decree and appointment of Advocate Commissioner was not served on the parties to the suit; (b) the court appoint ed the Advocate Commissioner without any notice to the parties; (c) the court did not pass any order directing the parties to appear before the Advocate Commissioner as required under Order XXVI. Rule 18 ; (d) the defendands had no notice of the filing of the report of the Advocate Commissioner before the court nor any notice for filing objection to the Advocate Commissioner's report was given ; (e) the order was confirmed by the court only in pretence of mother and son, who were plaintiff and defendant No. 11 to the exclusion of parties who belong to two other branches, namely, Mitulal Singh and Jitulal Singh.

(3.) On a perusal of the order sheet of the court below as also the order sheet of the Advocate Commissioner it transpires that: (a) copy of the application for preparation of final decree by defendant No. 11 was not served on other parties and/or their counsel; (b) the parties were not noticed for appointment of Advocate Commissioner nor any order was passed directing the parties by issuance of notice to appear before the Advocate Commissioner. The Advocate Commissioner, however, issued notice to all the parties by registered post and the defendants at whose instance the impuged order has been passed appeared before the Advocate Commissioner on different dates. The order sheet does not show that after filing of the report of the Advocate Commissioner either counsel of the parties or the parties were noticed for filing objection to the Advocate Commissioner's report. On various dates the case was adjourned. The plaintiff and defendant No. 11 who belong to the branch of Damri Singh only appeared for confirmation of the two Advocate Commissioner's report.