Case Note & Summary
The petitioner, Pramod Dattatraya Kand, the judgment debtor, challenged an order dated 07.09.2019 passed by the Executing Court in Final Decree Application No.3 of 2014. The respondent, Sow. Sudha Krishna Kand, the decree holder, had filed an application (Exhibit 24) seeking appointment of a court commissioner to execute a partition decree. The suit property was a house in Plot No.111, Survey No.11, Ahmednagar. The original plaintiff (respondent) was the wife of the petitioner's real brother. She had filed Special Civil Suit No.55 of 2007 for declaration and possession, which was decreed on 25.06.2008, granting half share to each party. Both sides appealed, and the Regular Civil Appeal and Cross Objection were dismissed on 06.12.2012, confirming the equal shares. Both parties then filed Second Appeal Nos.578 of 2013 and 581 of 2013 before the Bombay High Court, which were pending. The Executing Court partly allowed the respondent's application, appointing a court commissioner to visit the suit property and submit a proposal for execution, with directions that the commissioner not put the decree holder directly in possession and that the parties file a joint pursis regarding the commissioner's name. The petitioner argued that the order was final and could not be passed during the pendency of the Second Appeals. The High Court held that the impugned order was only a step towards execution, not a final determination of rights, and the commissioner's report would be subject to objections. The court found no error in the Executing Court's order and dismissed the writ petition, noting that the petitioner could raise objections to the commissioner's report if aggrieved.
Headnote
A) Civil Procedure - Execution of Decree - Appointment of Court Commissioner - Order 26 Rule 9 read with Section 54 of the Code of Civil Procedure, 1908 - The Executing Court appointed a court commissioner to visit the suit property and submit a proposal for execution of the partition decree, directing the commissioner not to put the decree holder directly in possession. The High Court held that the appointment of a commissioner to suggest the mode of execution is permissible and does not amount to a final determination of rights, as the commissioner's report is subject to objections and court approval. (Paras 2-7) B) Civil Procedure - Final Decree - Partition - Section 54 of the Code of Civil Procedure, 1908 - In a suit for partition, the court may appoint a commissioner to suggest the mode of division. The High Court observed that the impugned order was only a step towards execution and not a final order, and thus the writ petition was premature. (Paras 5-7)
Issue of Consideration
Whether the Executing Court could appoint a court commissioner to propose the mode of execution of a partition decree, and whether such appointment amounts to a final determination of rights.
Final Decision
The High Court dismissed the writ petition, holding that the impugned order was not a final order but only a step towards execution. The court found no error in the Executing Court's order appointing a court commissioner to propose the mode of execution. The petitioner was given liberty to raise objections to the commissioner's report if aggrieved.
Law Points
- Execution of decree
- appointment of court commissioner
- partition decree
- mode of execution
- final decree proceedings
- Order 26 Rule 9 CPC
- Section 54 CPC
