PRITHVI NATH TIKOO Vs. RUKMANI & ORS.

JUDGEMENT

(1.) This revision is directed against the order dated 29-6-1985 passed by District Judge, Srinagar. The revision petition was amended and necessary parties were added to it in place of Dawarka Nath who had died.

(2.) It seems that an order came to be passed by Sub Judge, Judge Small Causes Court, Srinagar, in an execution proceedings dated 17-1-1983, whereby it was ordered to put Dawarkanath, predecessor-in-interest of respondents 1 to 4 into possession of the share allotted to him in the decree for partition in respect of a house which was jointly owned by the parties. A preliminary decree was passed by the trial court on 11-8-1975 and an Advocate was appointed as a Commissioner to prepare the Scheme of partition by metes and bounds. The said advocate appears to have submitted his report on 17-12-1975. The parties accepted the report, consequently a final decree was passed by the trial court making the report of the Commissioner as part of the decree.

(3.) Predecessor-in-interest of respondents 1 to 4 applied for execution of the decree and the decree was allowed to be executed. On appeal the District Judge confirmed this finding of the executing court holding that anything said by the Commissioner will give separate cause of action to the petitioner herein to claim amount from the decree-holder but that cannot prevent the decree-holder from taking the execution. The Commissioner's observations in his report were not condition precedent for execution of the decree.