Case Note & Summary
The Civil Revision Petition was filed by the defendants challenging an order of the trial court appointing an Advocate Commissioner to suggest modes of division as per the preliminary decree for partition. The respondents/plaintiffs had filed a suit for partition, and a preliminary decree was passed declaring 1/16th share to the first plaintiff and 7/8th share to each of the plaintiffs 2 and 3. Pursuant to the preliminary decree, the plaintiffs filed an application seeking appointment of an Advocate Commissioner to divide the property. The trial court allowed the application, appointing an Advocate Commissioner. Aggrieved, the defendants filed the present revision. The main legal issue was whether such an application for appointment of Commissioner is maintainable without a separate application for passing of a final decree. The petitioners argued that the application was untenable and that it would deprive them of the right to appeal against the final decree. The court, relying on the Supreme Court decision in Shub Karan Bubna @ Shub Karan Prasad Bub vs Sita Saran Bubna & Ors, (2009) 9 SCC 689, held that the preliminary decree itself is sufficient for appointment of a Commissioner to suggest the mode of division, and no separate application for final decree is necessary at that stage. The court dismissed the revision petition, upholding the trial court's order.
Headnote
A) Civil Procedure - Partition Suit - Appointment of Advocate Commissioner - Preliminary Decree - Maintainability - The court considered whether a petition for appointment of Advocate Commissioner to divide property is maintainable without a separate application for final decree - Held that the preliminary decree itself is sufficient for appointment of Commissioner to suggest mode of division, and no separate application for final decree is necessary at that stage (Paras 6-8).
Issue of Consideration
Whether a petition seeking appointment of Advocate Commissioner to divide the property as per the preliminary decree is maintainable without a separate application for passing of final decree.
Final Decision
The Civil Revision Petition is dismissed. The order of the trial court appointing Advocate Commissioner is upheld.
Law Points
- Preliminary decree in partition suit is sufficient for appointment of Advocate Commissioner to suggest mode of division
- no separate application for final decree required
- Order 26 Rule 9 CPC
- Article 227 Constitution of India
Case Details
2026 LawText (MAD) (03) 242
CRP.No.1096 of 2026 and CMP.No.5723 of 2026
M/s.R.Thenamirtha Shyamala
Shakila Shareef, Niyamathulla Shareef
K.Shabeena Shareef, Farhan Shareef (minor), Adaan Shareef (minor)
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Nature of Litigation
Civil Revision Petition challenging order appointing Advocate Commissioner in partition suit
Remedy Sought
Petitioners/defendants sought to set aside the order dated 04.11.2025 in I.A.No.14 of 2024 in O.S.No.603 of 2020 appointing Advocate Commissioner
Filing Reason
Petitioners contended that application for appointment of Advocate Commissioner without separate final decree application was untenable
Previous Decisions
Preliminary decree for partition passed declaring shares; trial court appointed Advocate Commissioner by order dated 04.11.2025
Issues
Whether petition for appointment of Advocate Commissioner to divide property as per preliminary decree is maintainable without separate application for final decree
Submissions/Arguments
Petitioners argued that appointment of Advocate Commissioner without filing petition for passing final decree is untenable and would deprive right of appeal against final decree
Ratio Decidendi
In a partition suit, a preliminary decree is sufficient for appointment of an Advocate Commissioner to suggest the mode of division; no separate application for final decree is necessary at that stage.
Judgment Excerpts
The main question to be decided in this revision is whether petition filed by the plaintiff seeking appointment of Advocate Commissioner to divide the property, as per the preliminary decree is maintainable without a separate application for passing of final decree.
The practice of passing two decrees in the name of preliminary decree and final decree in partition suit and the inconvenience caused by such practice had been extensively considered by the Apex Court in Shub Karan Bubna @ Shub Karan Prasad Bub vs Sita Saran Bubna & Ors reported in (2009) 9 SCC 689.
Procedural History
Suit for partition filed by respondents/plaintiffs; preliminary decree passed declaring shares; plaintiffs filed I.A.No.14 of 2024 for appointment of Advocate Commissioner; trial court allowed application on 04.11.2025; defendants filed CRP No.1096 of 2026 challenging that order; High Court dismissed revision on 09.03.2026.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 26 Rule 9
- Constitution of India: Article 227
