Case Note & Summary
The litigation arose from a suit for partition, Special Civil Suit No.29/1996, filed by Anantrai Ramashankar Upadhyay, which was decreed on 13 October 2003, declaring one-fifth share each to the plaintiff and four defendants. The property in dispute, described as Upadhyay Niwas with a godown on Nagpur-Wardha Road, was an old family house with ground and two upper floors. The defendant No.4 Girish Upadhyay and defendant No.9 Chirag Upadhyay contested the suit, claiming that the common ancestor Ramashankar had executed a Will bequeathing the property to Chirag and Jaikishan, sons of Girish. The correctness of the partition decree was tested before the First Appellate Court, this Court, and finally the Hon'ble Supreme Court, which dismissed the proceedings on 23 September 2019. Meanwhile, final decree proceedings FDP No.9/2003 (filed by Sharad, Jatin, Pratik) and FDP No.10/2003 (filed by Anantrai) were initiated. Wardha Nagri Sahakari Adhikosh Maryadit, a mortgagee, was a party. On 13 October 2008, the Executing Court appointed Court Commissioner Advocate Shri Udapurkar to partition the house and immovable properties, and also appointed a Chartered Accountant. The Court Commissioner submitted his report on 5 July 2006 (Exh.44) opining that the house property was not capable of partition and advised sale. The final decree proceedings were stayed because First Appeal No.123/2004 was pending. Later, decree holders applied at Exh.47 and Exh.33 for sale of the house property as per the Commissioner's report. The Executing Court, by two orders dated 17 March 2018, ordered sale of the house property by public auction. The appellants challenged these orders in RCA No.79/2020 and RCA No.78/2020 before the District Court, Wardha, which dismissed the appeals on 2 July 2021. Hence, the present second appeals. The High Court framed seven substantial questions of law: whether the First Appellate Court was right in accepting the Commissioner's report without examining him and by treating non-objection as acceptance; whether it failed to give its own finding on acceptance; whether it erred in confirming sale before final decree; whether it wrongly attributed objections of judgment debtors 1 and 6 to the appellants; whether it ignored Section 2 of the Partition Act; whether it accepted an unsigned and unverified application; and whether the executing court could invoke Order 21 Rules 64 to 66 CPC for sale when executing a partition decree. Appellants argued procedural irregularities and non-compliance with CPC and Partition Act, whereas respondents emphasized dilatory tactics by appellants. The available excerpt does not record the final outcome of the second appeals.
Headnote
A) Civil Procedure - Court Commissioner Report - Acceptance Without Examination - Code of Civil Procedure, 1908 - The First Appellate Court accepted the Court Commissioner's report that the house property was not capable of partition without examining the Commissioner and treated absence of objection by these appellants as acceptance. The High Court framed a substantial question of law whether this approach was correct, highlighting the procedural requirement of examining the Commissioner before relying on his report (Para 11). B) Civil Procedure - First Appellate Court Findings - Independent Finding on Commissioner's Report - Code of Civil Procedure, 1908 - The appellants contended that the First Appellate Court failed to give its own finding on acceptance of the Court Commissioner's report. The High Court framed a substantial question whether the First Appellate Court abdicated its appellate duty to independently assess the report (Para 11). C) Civil Procedure - Final Decree Proceedings - Sale Before Final Decree - Code of Civil Procedure, 1908 - The executing court ordered sale of the house property by public auction before any final decree was passed in the partition suit. The High Court framed a substantial question whether the First Appellate Court erred in confirming the sale order when final decree had not been passed (Paras 8, 11). D) Civil Procedure - Objections by Co-Defendants - Attribution of Objections - Code of Civil Procedure, 1908 - The First Appellate Court observed that the appellants had not objected to the prayer for sale, treating objections of judgment debtor Nos.1 and 6 as given by the appellants. The High Court framed a substantial question whether this attribution was erroneous (Para 11). E) Partition - Sale of Property - Section 2 of Partition Act, 1893 - Partition Act, 1893, Section 2 - The First Appellate Court confirmed the sale order without considering Section 2 of the Partition Act, which governs sale of property in partition suits. The High Court framed a substantial question whether non-consideration of Section 2 vitiated the confirmation (Para 11). F) Civil Procedure - Applications - Signature and Verification - Code of Civil Procedure, 1908 - The application seeking sale of property was allegedly not signed on behalf of the decree holders and not verified. The High Court framed a substantial question whether the First Appellate Court erred in accepting such an application (Para 11). G) Civil Procedure - Execution of Partition Decree - Applicability of Order 21 Rules 64-66 - Code of Civil Procedure, 1908, Order 21 Rules 64 to 66 - The executing court took recourse to Order 21 Rules 64 to 66 CPC for sale of property in execution of a partition decree. The High Court framed a substantial question whether these provisions could be invoked when executing a partition decree (Para 11).
Issue of Consideration
Whether the First Appellate Court erred in accepting the Court Commissioner's report without examination and by treating non-objection as acceptance; whether it failed to give independent finding on acceptance; whether it erred in confirming sale before final decree; whether it wrongly attributed objection of judgment debtors 1 and 6 to appellants; whether it ignored Section 2 of Partition Act; whether it accepted unsigned/unverified application; and whether executing court could invoke Order 21 Rules 64 to 66 CPC for sale in execution of partition decree.
Law Points
- Court Commissioner's report must be examined before acceptance
- absence of objection does not amount to acceptance of report
- final decree is required before sale of indivisible property
- Section 2 of Partition Act
- 1893 applies to sale of property
- executing court cannot invoke Order 21 Rules 64 to 66 CPC for execution of partition decree
- application for sale must be signed and verified
- dilatory tactics in final decree proceedings should be discouraged
