Andhra HC (Pre-Telangana)
Pamula Narsaiah And Anr. vs Pamula Murali And Ors. on 9 August, 2001
Equivalent citations: 2002(1)ALD393, 2001(6)ALT385, 2001 A I H C 4731, (2002) 1 ANDHLD 393, (2001) 6 ANDH LT 385, (2001) 2 ANDHWR 427
Author: E. Dharma Rao
Bench: E. Dharma Rao
ORDER
1. Though the notice was served on the respondents, they have not chosen to appear either in person or through an advocate. Therefore, this Court has decided to dispose of civil revision petition after hearing learned Counsel for the petitioner and on the basis of the material placed before this Court.
2. This civil revision petition is filed by respondents 2 and 6/defendants I and 6 aggrieved by the order passed in IA No.291 of 1997 in OS No.89 of 1983 dated 19-11-1998 wherein the learned Junior Civil Judge, Bhongir, set aside the report of the Commissioner appointed by his predecessor in IA No.793 of 1987 on the ground that the petitioner in the IA No.291 of 1997 was not given opportunity before executing warrant for division of the property between the parties in the above suit.
3. The brief facts of the case are that second respondent filed OS No.89 of 1983 for partition and separate possession of the plaintiff l/3rd share in the suit schedule property. The suit against D10 and Dl1 was dismissed for non-payment of process and defendants 1 and 9 remained ex parts and therefore, a preliminary decree came to be passed on 2-7-1987 for partition of suit schedule property and division of the same into three equal shares and directed for allotment of one such share i.e., l/3rd share to the plaintiff. The plaintiff filed IA No.793 of 1987 seeking appointment of Advocate-Commissioner for working out the final decree and to demarcate the suit schedule land in pursuance of the preliminary decree. The Court appointed the Advocate-Commissioner, Sri Ch. Venkatesham, who inspected the suit and executed the warrant of Commissioner. He filed a report stating that he demarcated 'A' and 'B' schedule properties as per preliminary decree and plaintiffs share was fixed as shown in red colour with the assistance of MC Inspector. As per the said allotment, Ac 4-15 guntas of land fell to the share of the plaintiff out of Ac.13-04 guntas in the suit schedule survey number. The respondent-defendant No.2 filed IA No. 1031 of 1994 in IA No.793 of 1987 for appointment of Commissioner for the second time and division of 'A' and 'B' schedule properties as per the preliminary decree. The said application was dismissed on 9-8-1995 holding that no objections were filed to the report of the Commissioner and the final decree and the petition was closed and the second Commissioner cannot be appointed. Further, the petitioner therein has no locus stanch to file the present petition for appointment of second Commissioner as long as the report of the first Commissioner is in existence. If the petitioner-respondent No. 1 is aggrieved by the report of the first Commissioner, he should have filed objections to the report. The said report was not challenged and it has become final. Thereafter, the respondent No. 1 filed the present IA for appointment of the second Advocate-Commissioner on the ground that though the petitioner-respondent No. 1 was made a party in IA No.793 of 1987, no notice was served and the objections were not filed. After hearing the arguments and considering the facts and circumstances of the case, the Court below allowed the IA on the ground that the petitioner-respondent No. 1 was not given notice while executing the Court warrant and he was not given any opportunity to put forth his objections. It is further observed that the Commissioner has to divide properties into three equal shares as directed in the preliminary decree and the plaintiff can be allotted one such share out of three equal shares by the Court and the Commissioner cannot directly allot shares to the plaintiff. He has not fixed the shares of Dl and D2. In view of the above, the Court was satisfied that the report of the earlier Commissioner is bad for non-observance of the principles of natural justice and liable to be set aside. As the dismissal order in IA No.1031 of 1994, it was observed that the respondent petitioner could maintain objections against the report of the advocate Commissioner and to seek appointment of another Commissioner. Aggrieved by the said order, present revision petition is filed.
4. The order of the present IA is attacked by the learned Counsel for petitioners on the ground that earlier the petitioner-respondent No.1 has filed 1A No. 1031 of 1994 seeking appointment of another Commissioner when the earlier Commissioner's report has become final as no objections were filed against the report and the division of the property in between the parties is made according to the first Commissioner's report and a preliminary decree was passed by the Court and it has become final. At the stage of passing the final decree, the respondent petitioner came up with the said IA only on the ground that at the time of execution of the warrant, the petitioner-respondent No.1 was not given notice.
5. Learned Counsel for the petitioners submits that the respondent No.1 allowed the report of the Advocate-Commissioner to become final and he has not chosen to file any objections to the report and allowed the Court to pass the preliminary decree. When once IA No. 1031 of 1994 for the same relief is dismissed, the respondent No.1 cannot file present IA for the same relief. The Court below should not have set aside the earlier Commissioner's report as it has become final. The Court below cannot review its own order and therefore, its order is liable to be set aside.
6. As seen from the facts and circumstances of the case, the suit was filed for partition of 'A' and 'B' schedule properties. In that suit, 'A' schedule properties consist of agricultural lands measuring Ac. 13-04 guntas and 'B' schedule properties consist of a house situated at Medapuram. The respondent No.1 appeared in the case and did not file the written statement and he had no objection for passing the preliminary decree for partition and they ultimately remained ex parte. The Court passed the ex parte preliminary decree on 2-9-1989 on the basis of report of the Advocate-Commissioner, who was appointed in IA No.793 of 1987. Meanwhile, the suit was dismissed for default. IA No.340 of 1995 was filed for restoration of suit and accordingly it was restored. Thereafter, the petitioner filed IA No. 1031 of 1994 for appointment of second Advocate-Commissioner which was dismissed on merits and the order was not challenged by way of revision. Now IA No.291 of 1997 for appointment of second Commissioner by setting aside the earlier Commissioner's report was filed on the ground that the petitioner-respondent No.1 is not having knowledge of the visit of the Commissioner appointed in IA No.793 of 1987 and no notice was served on the petitioner.
7. From the facts and circumstances of the case, it is clear that OS No.89 of 1993 was filed for partition of suit schedule A and B properties among the plaintiff and the defendants. The suit against defendants 10 and 11 was dismissed for non payment of process and the defendants 1 and 9 were set ex parle and a preliminary decree was passed on 2-7-1987 for partition of the suit schedule properties into three equal shares and for allotment of one such share i.e., l/3rd share to the plaintiff. Accordingly, IA No.793 of 1987 seeking appointment of a Advocate-Commissioner to workout the final decree and to demarcate the suit schedule properties in pursuance of the preliminary decree was filed and an Advocate-Commissioner was appointed to inspect the suit land and to execute the warrant of Commission. The learned Advocate-Commissioner filed a report stating that the demarcated the A and B schedule properties as per the preliminary decree, divided the properties and the plaintiffs share was fixed as shown in red colour, with the assistance of MC. Inspector, out of Ac. 13-04 guntas. But it appears that the Commissioner issued notices to the Counsel. Subsequently, the respondent has filed IA No.1031 of 1994 in IA No.793 of 1987 praying for the appointment of an Advocate-Commissioner and division of A and B schedule properties as per preliminary decree. The said application was dismissed on 9-8-1995 holding that since no objections were filed to the report of the Advocate-Commissioner and the final decree and partition were closed, Second Commissioner cannot be appointed and the petitioner therein has no locus standi to file interlocutory application for appointment of a Second Commissioner so long as the report of the first Advocate-Commissioner is in existence.
8. Now the respondent has filed the present IA No.291 of 1997 to set aside the report of the first Advocate-Commissioner on the ground that the said Advocate-Commissioner has not issued notices to the respondents-petitioners before executing the warrant. The Court observed, while disposing of the IA No.1031 of 1994, that so long as the report of the first Advocate-Commissioner is in existence, second Advocate-Commissioner cannot be appointed. Therefore, the present application was filed seeking to set aside the report of the first Advocate-Commissioner and to appoint a new Advocate-Commissioner on the ground that the respondent/petitioner was not served with notice and the prayer in the instant interlocutory application is different from the prayer in IA No.1031 of 1994.
9. The said IA was resisted by the petitioner contending that once the report of the first Advocate-Commissioner is accepted and a preliminary decree was passed and the matter was closed, it is not open for the Court below to reconsider the same and set aside the first Advocate-
Commissioner's report and it operates as res judicata.
10. However, after considering the facts and circumstances of the case, the Court below set aside the report of the first Advocate-Commissioner and appointed second Advocate-Commissioner on the ground that the said order does not operate as res judicata, to divide the suit schedule properties into three equal shares by metes and bounds, as directed in the preliminary decree, after issuing notice to the parties and after following the procedure prescribed under Order 26, Rule 14 of the Code of Civil Procedure and allot to the plaintiff and defendants I and 2.
11. Challenging the said order, the present civil revision petition is filed.
12. As seen from the facts and circumstances of the case, the respondents-petitioners though notices were received by the Counsel, did not participate in the enquiry conducted by the Advocate-Commissioner, and after filing the report, they have not submitted their objection and thus allowed the matter to attain its finality and the matter was closed. The Court below has rightly observed that it is not open to the Court to reconsider the matter and interfere with the final order and if the respondents-petitioners are aggrieved, they should have tested the correctness of the final decree by way of appeal, instead of approaching the same Court for reopening the matter invoking inherent powers of the Court to which the Court below is not empowered.
13. Order 26, Rule 14(3) contemplates that where the Court confirms or varies the report or reports, it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports, it shall either issue a new Commission or make such other order as it shall think fit.
14. The abovesaid provision of law enables the Courts either to confirm or vary the report or reports submitted by the Advocate-Commissioner and it shall pass a decree in accordance with the Commissioner's report as confirmed or varied. If, the Court on reasons, does not agree with the Advocate-Commissioner's report, can set aside the report or reports. Further, it shall issue either a new Commission or make such other order as it shall think fit. Therefore, it is clear that once the Court confirms or varies with the report of the Commissioner, it shall pass the decree in accordance with the report as confirmed or varied. If the Court does not agree with the report of the Commissioner it shall set aside the report and pass either an order appointing a new Commissioner or such other order as it may think proper in the circumstances of the case.
15. In the case on hand, the Advocate-Commissioner's report submitted to the Court was confirmed.
16. Applying the abovesaid provision of law to the facts and circumstances of the case, the Court below confirmed the report submitted by the Advocate-Commissioner and passed a final decree in accordance with the findings of the enquiry report and the final decree has become final under Sub-rule (3) of Rule 14. Thereafter, the respondents-petitioners have filed IA No.1031 of 1994 to reconsider the matter and appoint a second Commissioner for the reasons mentioned therein, The Court below after considering the facts and circumstances of the case dismissed the above IA on the ground that they have accepted the Commissioner's report and they have not chosen to file any objections. Further, the final decree passed by the Court below on the basis of the Advocate-Commissioner has become final. In view of the above, when the Court below has confirmed the report of the Advocate-Commissioner and passed the final order in accordance with the findings of the Advocate-Commissioner, which has become final, the Court below has no power to once again reopen the matter or review its own order in the IA filed by the respondents-petitioners. If the Court accepts the Commissioner's report, it shall confirm the same, and if it varies, it can set aside the same. The Court below in terms of the first limb of sub-rule (3) of Rule 14 of Order 26, passed the final decree. The Court below, therefore, ought not to have entertained the IA and passed order setting aside the first Advocate-Commissioner, and appointed the second Advocate-Commissioner. According to me, it is contrary to the abovesaid provision of law. Therefore, I hold that under Sub-rule (3) of Rule 14 of Order 26, the Court below has no power to reopen or review its own order when it has confirmed and passed a final decree on the basis of the Advocate-Commissioner's report. If the parties are so aggrieved, they can assail the correctness or otherwise of the order by approaching the appellate Court. If once the Court below has confirmed and passed a final decree on the basis of the Advocate-Commissioner's report, it has no power to vary or set aside the Advocate-Commissioner and appoint a second Commissioner.
17. In view of the above, the order passed by the Court below is illegal and contrary to the sub-rule (3) of Rule 14 of Order 26 and it is liable to be set aside. Accordingly, civil revision petition is allowed and the order passed by the Court below is set aside, but, in the circumstances with costs.