Case Note & Summary
The petitioner, Latabai Subhashrao Dahake, challenged an order dated 15.06.2016 passed by the trial Court in final decree proceedings for partition of property. The impugned order appointed a Court Commissioner and simultaneously directed the Commissioner to deliver possession of the suit property to the judgment debtor and decree holder respectively. The High Court had earlier passed an interim order on 22.08.2016 noting that the trial court had directly passed an order handing over possession along with the appointment of Commissioner, which was contrary to the decision of the Apex Court in Shub Karan Bubna v. Sita Saran Bubna, which requires the Commissioner to first effect partition by metes and bounds and submit a report, and only after hearing parties on the report can the court direct delivery of possession. The respondent raised a preliminary objection that the writ petition was not maintainable as the petitioner had an alternative remedy of filing a Civil Revision Application under Section 115 CPC. The Court rejected this objection, holding that the remedy under Section 115 CPC is not available because if the writ petition is allowed, the proceedings before the trial court shall proceed further and shall not come to an end, as contemplated by the proviso to Section 115 CPC. On merits, the Court found that the trial court had erred in simultaneously appointing a Commissioner and directing delivery of possession without first having the Commissioner effect partition by metes and bounds and submit a report. The Court set aside the impugned order and directed the trial court to proceed in accordance with law, specifically requiring the Commissioner to first effect partition by metes and bounds and submit a report, and only after hearing the parties on the report can the court direct delivery of possession. The writ petition was allowed.
Headnote
A) Civil Procedure - Final Decree Proceedings - Appointment of Court Commissioner - Partition by Metes and Bounds - The trial court appointed a Court Commissioner and simultaneously directed delivery of possession of suit property to judgment debtor and decree holder - Held that the Commissioner must first effect partition by metes and bounds and submit a report, and only after hearing parties on the report can the court direct delivery of possession - The impugned order was set aside (Paras 2-5). B) Civil Procedure - Maintainability of Writ Petition - Alternative Remedy under Section 115 CPC - The respondent raised a preliminary objection that the petitioner had a remedy of filing a Civil Revision Application under Section 115 CPC - Held that the remedy under Section 115 CPC is not available because if the writ petition is allowed, the proceedings before the trial court shall proceed further and shall not come to an end, as contemplated by the proviso to Section 115 CPC - Hence, the writ petition was maintainable (Paras 3-4).
Issue of Consideration
Whether the trial court could simultaneously appoint a Court Commissioner and direct delivery of possession of suit property in final decree proceedings for partition, and whether the writ petition is maintainable despite availability of remedy under Section 115 CPC.
Final Decision
The writ petition is allowed. The impugned order dated 15.06.2016 passed below Exh.18 by the trial Court is set aside. The trial Court is directed to proceed in accordance with law, i.e., the Court Commissioner shall first effect partition by metes and bounds and submit a report, and only after hearing the parties on the report can the court direct delivery of possession.
Law Points
- Writ petition maintainable despite alternative remedy under Section 115 CPC when order does not finally dispose of proceedings
- Court Commissioner in partition decree proceedings must first effect partition by metes and bounds before delivering possession
- Order appointing Commissioner cannot simultaneously direct delivery of possession without hearing parties on Commissioner's report
