Case Note & Summary
The petitioner, Shashikant Vasudev Mahale, original defendant no. 2, filed a writ petition under Article 227 of the Constitution of India challenging orders passed by the trial court in a partition suit. The suit had proceeded to a preliminary decree, and a Court Commissioner was appointed to partition the properties. The Commissioner submitted a report, which the trial court confirmed by order dated 17.09.2009 on Exhibit 33. Subsequently, the trial court rejected the petitioner's applications (Exhibits 35 and 36) by order dated 24.09.2009, which sought to challenge the appointment of the Commissioner and to have the Gift Deed dated 13.06.2007 considered before confirming the report. The petitioner argued that the Gift Deed conferred rights upon him that were not considered by the Commissioner or the court. The respondents contended that the confirmation order under Order 26 Rule 14(3) of the Code of Civil Procedure, 1908 (CPC) amounted to a decree, rendering the writ petition not maintainable. The High Court examined the orders and found that the trial court had accepted the Commissioner's report without addressing the specific prayer in Exhibit 35 regarding the Gift Deed. The court noted that the Gift Deed was executed on 13.06.2007, and its relevance could not be ignored. The High Court held that a party can challenge the appointment of a Commissioner even after appointment, especially when the Commissioner's role is to proceed further in view of the preliminary decree. The court emphasized that notice to parties is necessary, and objections must be considered by both the Commissioner and the court before the report becomes final. The High Court also observed that there is no total bar under Section 97 CPC against applying for modification of a preliminary decree by placing material on record. The impugned orders were not final decrees as contemplated under Section 97 CPC. Consequently, the High Court set aside the orders dated 17.09.2009 and 24.09.2009 and directed the trial court to reconsider the applications (Exhibits 33, 35, and 36) and the Commissioner's report afresh, after giving the petitioner an opportunity to place the Gift Deed on record and after hearing all parties. The writ petition was allowed in those terms.
Headnote
A) Civil Procedure - Commissioner's Report - Confirmation Without Considering Objections - Order 26 Rule 14, Code of Civil Procedure, 1908 - The trial court confirmed the Commissioner's report without addressing the petitioner's objection based on a Gift Deed dated 13.06.2007, which was raised in applications Exhibits 35 and 36. The High Court held that such confirmation without consideration causes injustice and set aside the orders, directing the trial court to reconsider the applications and the Commissioner's report afresh, after giving the petitioner an opportunity to place the Gift Deed on record. (Paras 5-7, 10) B) Civil Procedure - Preliminary Decree - Modification After Preliminary Decree - Section 97, Code of Civil Procedure, 1908 - There is no total bar under Section 97 CPC preventing an affected party from applying for modification or amendment of a preliminary decree by placing material on record. The court can consider such applications to ensure justice. (Para 8) C) Constitutional Law - Writ Jurisdiction - Maintainability Under Article 227 - Article 227, Constitution of India - The writ petition under Article 227 is maintainable even if the order confirming the Commissioner's report is treated as a decree under Order 26 Rule 14(3) CPC, as the court can exercise supervisory jurisdiction to correct errors causing injustice. (Paras 2-3, 10)
Issue of Consideration
Whether the trial court erred in confirming the Commissioner's report and rejecting applications without considering the petitioner's rights under a Gift Deed dated 13.06.2007, and whether the writ petition under Article 227 is maintainable despite the confirmation order being akin to a decree under Order 26 Rule 14(3) CPC.
Final Decision
The High Court allowed the writ petition, setting aside the orders dated 17.09.2009 and 24.09.2009. The trial court was directed to reconsider the applications (Exhibits 33, 35, and 36) and the Commissioner's report afresh, after giving the petitioner an opportunity to place the Gift Deed on record and after hearing all parties. Rule made absolute accordingly.
Law Points
- Commissioner's report confirmation without considering objections
- Gift Deed rights
- Order 26 Rule 14 CPC
- Section 97 CPC
- Article 227 Constitution
- preliminary decree modification
