Case Note & Summary
The petitioners, heirs of Ramlal Sheoratan Shahu, filed a writ petition challenging an order dated 2/2/2011 passed by the 4th Joint Civil Judge, Senior Division, Nagpur. The impugned order allowed applications (Exhs. 61 and 66) filed by the respondents (heirs of Ramdin Shahu) for appointment of a fresh Commissioner to partition the suit properties in terms of a preliminary decree. The background of the case is that Ramlal Sheoratan Shahu had filed Special Civil Suit No. 123/1973 for partition and possession of his 1/4th share in ancestral property. The suit was decreed on 30/9/1991, and a Commissioner was appointed to effect and deliver the share. The decree was confirmed up to the Supreme Court. The petitioners contended that the earlier Commissioner had already submitted a report and that the decree had been executed, making the fresh commission unnecessary. The respondents argued that the partition had not been effectively carried out and that a fresh commission was required. The court analyzed that the decree had been passed as long back as 1991 and had been confirmed by the highest court. The court found that the petitioners were attempting to stall the execution on one pretext or another. The court held that the impugned order was just and proper and that the petition was devoid of merits. The court dismissed the petition with costs of Rs. 5,000 to be paid to the respondents.
Headnote
A) Civil Procedure - Execution of Decree - Final Decree Proceedings - Appointment of Commissioner - The court allowed applications for appointment of a fresh Commissioner for partitioning the suit properties amongst the decree holders and judgment debtors in terms of the preliminary decree - The petitioners challenged the order on the ground that the earlier Commissioner had already submitted a report and the decree had been executed - The court held that the decree passed in 1991 and confirmed up to the Supreme Court cannot be stalled by repeated objections and that the impugned order was just and proper - Held that the petition was devoid of merits and dismissed (Paras 2-6).
Issue of Consideration
Whether the impugned order dated 2/2/2011 passed by the learned 4th Joint Civil Judge, Senior Division, Nagpur allowing applications for appointment of a fresh Commissioner for partitioning the suit properties is sustainable in law.
Final Decision
The petition is dismissed with costs of Rs. 5,000 to be paid to the respondents.
Law Points
- Execution of decree
- partition decree
- final decree proceedings
- appointment of commissioner
- res judicata
- abuse of process of court
