Bombay High Court
Madhukar Ganpatrao Wankhede(D) ... vs Smt.Lilabai Wd/O Manohar Rao Wankhede on 18 August, 2016
Author: R. K. Deshpande
Bench: R. K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 465 OF 2003
Madhukar Ganpatrao Wankhede
(since deceased through its legal heirs)
1] Smt. Pramila wd/o Madhukar Wankhede,
aged adult, Occ. Household,
R/o. Ulhasngar, Plot No. 81,
Manewada Road, Nagpur.
2]
Rajesh s/o Madhukar Wankhede,
aged - adult, Occ. Business,
3] Sanjay s/o Madhukar Wankhede,
Occ. Business,
4] Vijay s/o Madhukar Wankhede,
aged - Adult, Occ. Driver.
5] Ajay s/o Madhukar Wankhede,
aged - Adult, Occ. Nil.
All residents of Plot No. 81, Ulhasnagar,
Manewada Road, Nagpur.
6] Sau. Manjusha w/o. Digambar Bhoyar,
aged - adult, Occ. Household,
R/o. Satephal, Tah. Chandur Railway,
District - Amravati. PETITIONER
...VERSUS...
Smt. Lilabai wd/o Manoharrao Wankhede,
(since deceased, through L.Rs.)
1] Chandrashekhar s/o Manoharrao Wankhede,
aged 35 years, R/o. Walker Road, Mahal,
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Wankhede Wada, Nagpur.
2] Smt. Chanda Shashikant Kadam,
aged about 38 yeas, Occ. Household,
R/o.Naik Road, Mahal, Nagpur.
3] Smt. Rajeshree Amardeep Kamble,
aged about 42 years, Occ. Business,
R/o. Plot No.14, Kirad Layout,
Mankapur, Nagpur.
4] Smt. Madhu Navin Soni,
aged about 36 years,
Occ. Household, R/o. Walker Road,
Mahal, Nagpur. ......
ig RESPONDENTS
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Shri Rohan Chhabra, counsel for appellants.
Shri Yash Maheshwari, counsel h/f Shri S.V.Bhutada, counsel for
Respondents
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CORAM: R. K. DESHPANDE, J.
th
DATE : 18 AUGUST, 2016 .
ORAL JUDGMENT
1] In Regular Civil Suit No. 2005 of 1986, the trial Court on 20.02.1988 passed a decree for partition and directed an appointment of Commissioner to effect the partition. The parties are held entitled to their shares as specified in paragraph 11 of the judgment, which is reproduced below.
"11. The defendants No. 7 is the widow of deceased Ganpatrao and in view of provision of Hindu ::: Uploaded on - 24/08/2016 ::: Downloaded on - 24/08/2016 23:57:03 ::: 3 sa465.03.odt Succession Act, after the death of Ganpatrao, she is also entitled to the share in the suit house as described in plaint para 5. The plaintiff is entitled to the share in the suit house 5/12 and defendant No. 6 & 7 1/12 and defendants No. 1 to 5 in common they have to share in 5/12 and all defendants 1 to 5 have equal right in 5/12 share, therefore, my findings to issue No. 1 and 3 are in affirmative, and pass the following order.
O R D E R
1. The suit is decreed.
2. Looking to the relations of the parties, there is no order as to costs.
3. A Commissioner be appointed in this case to effect partition as per decree.
4. A preliminary decree be drawn accordingly"
2] The appellant-original plaintiff is held entitled to 5/12 share in the suit house, whereas the defendant Nos. 1 to 5 together are held entitled to 5/12 share and the defendant Nos. 6 and 7 are held entitled to 1/12 share each.
This was a preliminary decree passed by the trial Court and the final decree proceedings were instituted by filing an application, registered as Final Decree Application No. 2005 of 1986. The said application was allowed granting a declaration that the defendant No.1 shall be the purchaser of the suit property and she was directed to deposit 25% of the purchase money with the Nazir under Order XXI, Rule 84 of the Civil Procedure Code.
::: Uploaded on - 24/08/2016 ::: Downloaded on - 24/08/2016 23:57:03 :::4 sa465.03.odt 3] The defendant no.1 did not deposit the requisite amount within a stipulated period and there is a controversy in respect of it to the effect that there was extension granted by the executing Court or not. Be that as it may, the executing Court passed an order on 15.04.1997 below Exh.48, setting aside the sale of the property in favour of defendant No.1 and directing fresh auction to be conducted on the finding that there was violation of Order XXI, Rules 84 and 85 of the Civil Procedure Code.
4] The order dated 15.04.1997 was the subject matter of challenge in Regular Civil Appeal No. 480 of 1998, which has been allowed by the lower appellate Court on 17.03.2003, and the order passed below Exh. 48 by the executing Court has been set aside. The plaintiff is directed to deliver the possession of the suit house to the defendant No.1 and also the execution of sale deed. This is the subject matter of challenge in this second appeal by the original plaintiff.
5] On 12.07.2005, this Court passed an order ::: Uploaded on - 24/08/2016 ::: Downloaded on - 24/08/2016 23:57:03 ::: 5 sa465.03.odt framing the substantial questions of law, which is reproduced below.
"Heard Adv. Bhangde for appellant/Decree Holder. Nobody appears for respondent. Under the circumstances, Rule returnable early. Question No.1 and 4 in the appeal memo which reads as under shall be the Substantial Question of law.
(1) Whether the order dated 15.04.1997 passed by the 4th Joint Civil Judge (J.D), Nagpur, below Exh. 48 in F.D.A. No. 2005/86, holding that the respondent is not entitled for sale deed to be executed in her favour is a "Decree" as defined in Section 2(2) of ig the C.P.C, 1908. It is submitted that the said order is not a decree and therefore, no appeal lay against the same before the District Court u/s 96 of C.P.C?
(2) Whether the Lower Appellate Court is justified in law in reversing the order of Trial Court, without deciding one of the main issue viz., whether the respondent herein had deposited complete price of the property in question Rs.40,000/-? It is submitted that the respondent herein had deposited Rs.14,470/- only as held by the Trial Court.?
6] It is not in dispute that while passing a preliminary decree which was not appeal against, the trial Court directed appointment of the Court Commissioner, which was required to be made in terms of Order XXVI, Rules 13 and 14 of the Code of Civil Procedure. In the final decree proceeding, the Commissioner was not appointed to ascertain as to whether the property is divisible or indivisible.
Even if it is construed that the provisions of Order XXI, ::: Uploaded on - 24/08/2016 ::: Downloaded on - 24/08/2016 23:57:03 ::: 6 sa465.03.odt Rules 84 and 85 of Civil Procedure Code are not applicable for the sake of argument, in terms of the decision of the Apex Court in case of Badri Narain Prasad Choudhary and others vrs. Nil Ratan Sarkar, reported in AIR 1978 SC 845, the provisions of Section 2 and 3 of the Partition Act, 1893, require a Commissioner to be appointed to ascertain a question as to whether the property is divisible or not to protect the beneficial interest of all share holders. The learned counsels appearing for the parties, therefore, submit that the first thing which the Court should have done in the final decree proceeding was to appoint the Court Commissioner to ascertain the fact as to whether the property is divisible or not and thereafter the Court should have proceeded to determine the further course of action to be adopted in the matter.
7] The learned counsel appearing for the respondent has invited my attention to the decision of the Delhi High Court in case of Faquira vrs. Smt. Raj Rani and another, reported in AIR 1984 DELHI 168. Paragraphs 11 and 12 of the said decision being relevant, are reproduced below.
::: Uploaded on - 24/08/2016 ::: Downloaded on - 24/08/2016 23:57:03 :::7 sa465.03.odt "11. One of the questions raised before us was whether an appeal lay in the present case. We were first of the view that no appeal lay because of the provisions of Section 8 of the Act which are to be following effect :-
"8.Orders for sale to be deemed decree:-
Any order for sale made by the Court under Section 2, 3 or 4 shall be deemed to be a decree within the meaning of Section 2 of the Code of Civil Procedure." At the hearing of the appeal, it was stated before us that there was no order directing sale under Sections 2, 3 or 4 and therefore, we initially came to the view that no appeal was competent in this case. On reserving judgment, we found that the Court had ordered a sale without complying with Section 2, 3 and 4 and was, therefore, selling the property entirely without any authority of law. We, therefore, directed re-hearing of the appeal. In our view, the Act enables the property to be sold only in accordance with Sections 2, 3 and 4 or by agreement amongst the parties. The Court has no power to sell the property in any other way. If the Court chooses to pass an order for sale contrary to law, it is nevertheless a sale which is illegal and, therefore, capable of being challenged under Section 8.
12. The way we have understood the Section (Section
8), is as follows : The court can only pass an order directing sale of the joint property under the provisions of the Partition Act. It had no power to sell the property except as provided in the Act. Whenever the Court passes an order of sale, an appeal lies under Section 8. This section does not mean that the Court has power to sell the property otherwise than in accordance with the Act and no appeal will then be competent. If such an order is passed, it is an invalid order under Sections 2, 3 and 4 of the Act and is, therefore, capable of being attacked in appeal. We, therefore, come to the conclusion that this appeal is competent."
8] In view of the aforesaid law laid down by the Division Bench decision of the Delhi High Court, the order of resale passed on 15.04.1997 in the final decree proceedings by the executing Court can be termed as an order having a force of decree as contemplated by Section 8 of the Partition ::: Uploaded on - 24/08/2016 ::: Downloaded on - 24/08/2016 23:57:03 ::: 8 sa465.03.odt Act and therefore, an appeal before the lower appellate Court was maintainable. The substantial question of law at Sr.No.1 is answered accordingly and it is held that the present second appeal is against a decree passed by the lower Appellate Court.
9] The answer to the second substantial question of law framed by this Court would depend upon the adjudication of the question as to whether the proceedings for execution of a decree passed in a suit for partition are governed by the provisions of Order XXI, Rules 84 and 85 of Civil Procedure Code. The executing Court has recorded the finding that such provision is applicable to the sale in question, whereas the lower appellate Court has held that the sale was not governed by Order XXI, Rules 84 and 85 of Civil Procedure Code and therefore, the Court was competent to permit deposit of the amount beyond the stipulated period. Such adjudication could not have been done without report of the Court Commissioner. The findings of both the Courts below on this aspect need to be set aside, leaving it open for the executing Court to decide it afresh upon receipt of the report of the Court Commissioner, which has been held to be ::: Uploaded on - 24/08/2016 ::: Downloaded on - 24/08/2016 23:57:03 ::: 9 sa465.03.odt necessary to protect the interest of parties by the Apex Court in the decision in case of Badri Narain, cited supra.
10] In view of above, the second appeal is party allowed. The order dated 15.04.1997 passed by the executing Court in Final Decree Proceeding along with judgment and order dated 17.03.2003 passed in Regular Civil Appeal No. 480 of 1998 by the lower appellate Court are hereby quashed and set aside. Similarly, the order dated 09.08.1994 passed below Exh.1 in R.C.S No. 2005 of 1986 is also quashed and set aside and the executing Court is directed to appoint the Court Commissioner to ascertain as to whether the property is divisible or indivisible and shall thereafter proceed to decide the matter in accordance with law.
The parties to appear before the executing Court on 19.09.2016. The records and proceedings if are received be sent back to the trial Court to decide the Regular Civil Suit No. 2005 of 1986.
JUDGE Rvjalit ::: Uploaded on - 24/08/2016 ::: Downloaded on - 24/08/2016 23:57:03 ::: 10 sa465.03.odt C E R T I F I C A T E "I certify that this Judgment/Order uploaded is a true and correct copy of original signed Judgment/Order.
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