Case Note & Summary
The petitioners, legal representatives of the original plaintiff Y.R. Lakshminarasimhaiah, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 25.06.2018 passed by the Principal Senior Civil Judge, Chikkaballapur in F.D.P. No. 8/2016. The impugned order issued a commission warrant for partition of immovable property in final decree proceedings. The petitioners contended that the trial court lacked jurisdiction to issue such a commission without first determining the mode of partition and without complying with the requirements of Order 26 Rule 9 of the Code of Civil Procedure, 1908 (CPC). The respondents, including the legal representatives of the original defendant and other parties, supported the order. The High Court analyzed the provisions of Order 26 Rule 9 CPC, which allows a court to issue a commission for partition only after deciding the mode of partition and only if the property cannot be partitioned without a commission. The court noted that the trial court had not passed any order specifying the mode of partition before issuing the commission warrant. The High Court held that the impugned order was without jurisdiction and contrary to law. It quashed the order and directed the trial court to proceed afresh in accordance with law, after hearing all parties. The court also emphasized that the commissioner's report must contain a plan and valuation as required by Order 26 Rule 13 CPC. The petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Final Decree Proceedings - Commission for Partition - Jurisdiction - The trial court issued a commission warrant for partition of immovable property in final decree proceedings without first determining the mode of partition and without complying with Order 26 Rule 9 CPC - Held that the court must first decide the mode of partition and then issue a commission only if necessary, and the commission must be executed in accordance with law (Paras 1-10). B) Civil Procedure - Order 26 Rule 9 CPC - Commission for Partition - Requirements - The court must specify the manner of partition and the commissioner must submit a report with a plan and valuation - The impugned order was quashed as it did not comply with these requirements (Paras 5-10). C) Civil Procedure - Final Decree - Preliminary Decree - Distinction - A preliminary decree declares the rights of parties, while a final decree determines the actual division by metes and bounds - The court must pass a final decree after considering the commissioner's report (Paras 3-5).
Issue of Consideration
Whether the trial court had jurisdiction to issue a commission warrant for partition of immovable property in final decree proceedings without first determining the mode of partition and without complying with the requirements of Order 26 Rule 9 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the writ petition, quashed the order dated 25.06.2018 passed by the Principal Senior Civil Judge, Chikkaballapur in F.D.P. No. 8/2016, and directed the trial court to proceed afresh in accordance with law, after hearing all parties. No order as to costs.
Law Points
- Order 26 Rule 9 CPC
- Section 54 CPC
- Order 20 Rule 18 CPC
- Final Decree Proceedings
- Commission for Partition
- Jurisdiction of Executing Court
- Article 227 Constitution of India
