Bombay High Court
Madhukar Ganpatrao Wankhede(D) ... vs Smt.Lilabai Wd/O Manohar Rao ... on 18 August, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 465 OF 2003
Madhukar Ganpatrao Wankhede
(since deceased through its legal heirs)
1] Smt. Pramila wd/o Madhukar Wankhede,
aged adult, Occ. Household,
R/o. Ulhasngar, Plot No. 81,
Manewada Road, Nagpur.
2]
Rajesh s/o Madhukar Wankhede,
aged - adult, Occ. Business,
3] Sanjay s/o Madhukar Wankhede,
Occ. Business,
4] Vijay s/o Madhukar Wankhede,
aged - Adult, Occ. Driver.
5] Ajay s/o Madhukar Wankhede,
aged - Adult, Occ. Nil.
All residents of Plot No. 81, Ulhasnagar,
Manewada Road, Nagpur.
6] Sau. Manjusha w/o. Digambar Bhoyar,
aged - adult, Occ. Household,
R/o. Satephal, Tah. Chandur Railway,
District - Amravati. PETITIONER
...VERSUS...
Smt. Lilabai wd/o Manoharrao Wankhede,
(since deceased, through L.Rs.)
1] Chandrashekhar s/o Manoharrao Wankhede,
aged 35 years, R/o. Walker Road, Mahal,
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Wankhede Wada, Nagpur.
2] Smt. Chanda Shashikant Kadam,
aged about 38 yeas, Occ. Household,
R/o.Naik Road, Mahal, Nagpur.
3] Smt. Rajeshree Amardeep Kamble,
aged about 42 years, Occ. Business,
R/o. Plot No.14, Kirad Layout,
Mankapur, Nagpur.
4] Smt. Madhu Navin Soni,
aged about 36 years,
Occ. Household, R/o. Walker Road,
Mahal, Nagpur. ......
ig RESPONDENTS
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Shri Rohan Chhabra, counsel for appellants.
Shri Yash Maheshwari, counsel h/f Shri S.V.Bhutada, counsel for
Respondents
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CORAM: R. K. DESHPANDE, J.
th
DATE : 18 AUGUST, 2016 .
ORAL JUDGMENT
1] In Regular Civil Suit No. 2005 of 1986, the trial
Court on 20.02.1988 passed a decree for partition and
directed an appointment of Commissioner to effect the
partition. The parties are held entitled to their shares as
specified in paragraph 11 of the judgment, which is
reproduced below.
"11. The defendants No. 7 is the widow of deceased
Ganpatrao and in view of provision of Hindu
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Succession Act, after the death of Ganpatrao, she is
also entitled to the share in the suit house as described
in plaint para 5. The plaintiff is entitled to the share in
the suit house 5/12 and defendant No. 6 & 7 1/12 and
defendants No. 1 to 5 in common they have to share in
5/12 and all defendants 1 to 5 have equal right in 5/12
share, therefore, my findings to issue No. 1 and 3 are
in affirmative, and pass the following order.
O R D E R
1. The suit is decreed.
2. Looking to the relations of the parties, there is
no order as to costs.
3. A Commissioner be appointed in this case to
effect partition as per decree.
4. A preliminary decree be drawn accordingly"
2] The appellant-original plaintiff is held entitled to
5/12 share in the suit house, whereas the defendant Nos. 1
to 5 together are held entitled to 5/12 share and the
defendant Nos. 6 and 7 are held entitled to 1/12 share each.
This was a preliminary decree passed by the trial Court and
the final decree proceedings were instituted by filing an
application, registered as Final Decree Application No. 2005
of 1986. The said application was allowed granting a
declaration that the defendant No.1 shall be the purchaser of
the suit property and she was directed to deposit 25% of the
purchase money with the Nazir under Order XXI, Rule 84 of
the Civil Procedure Code.
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3] The defendant no.1 did not deposit the requisite
amount within a stipulated period and there is a controversy
in respect of it to the effect that there was extension granted
by the executing Court or not. Be that as it may, the
executing Court passed an order on 15.04.1997 below
Exh.48, setting aside the sale of the property in favour of
defendant No.1 and directing fresh auction to be conducted
on the finding that there was violation of Order XXI, Rules 84
and 85 of the Civil Procedure Code.
4] The order dated 15.04.1997 was the subject
matter of challenge in Regular Civil Appeal No. 480 of 1998,
which has been allowed by the lower appellate Court on
17.03.2003, and the order passed below Exh. 48 by the
executing Court has been set aside. The plaintiff is directed
to deliver the possession of the suit house to the defendant
No.1 and also the execution of sale deed. This is the subject
matter of challenge in this second appeal by the original
plaintiff.
5] On 12.07.2005, this Court passed an order
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framing the substantial questions of law, which is reproduced
below.
"Heard Adv. Bhangde for appellant/Decree Holder.
Nobody appears for respondent. Under the
circumstances, Rule returnable early. Question No.1
and 4 in the appeal memo which reads as under shall
be the Substantial Question of law.
(1) Whether the order dated 15.04.1997 passed by the
4th Joint Civil Judge (J.D), Nagpur, below Exh. 48
in F.D.A. No. 2005/86, holding that the respondent
is not entitled for sale deed to be executed in her
favour is a "Decree" as defined in Section 2(2) of
ig the C.P.C, 1908. It is submitted that the said order
is not a decree and therefore, no appeal lay
against the same before the District Court u/s 96 of
C.P.C?
(2) Whether the Lower Appellate Court is justified in
law in reversing the order of Trial Court, without
deciding one of the main issue viz., whether the
respondent herein had deposited complete price of
the property in question Rs.40,000/-? It is
submitted that the respondent herein had
deposited Rs.14,470/- only as held by the Trial
Court.?
6] It is not in dispute that while passing a
preliminary decree which was not appeal against, the trial
Court directed appointment of the Court Commissioner,
which was required to be made in terms of Order XXVI,
Rules 13 and 14 of the Code of Civil Procedure. In the final
decree proceeding, the Commissioner was not appointed to
ascertain as to whether the property is divisible or indivisible.
Even if it is construed that the provisions of Order XXI,
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Rules 84 and 85 of Civil Procedure Code are not applicable
for the sake of argument, in terms of the decision of the Apex
Court in case of Badri Narain Prasad Choudhary and
others vrs. Nil Ratan Sarkar, reported in AIR 1978 SC
845, the provisions of Section 2 and 3 of the Partition Act,
1893, require a Commissioner to be appointed to ascertain a
question as to whether the property is divisible or not to
protect the beneficial interest of all share holders. The
learned counsels appearing for the parties, therefore, submit
that the first thing which the Court should have done in the
final decree proceeding was to appoint the Court
Commissioner to ascertain the fact as to whether the
property is divisible or not and thereafter the Court should
have proceeded to determine the further course of action to
be adopted in the matter.
7] The learned counsel appearing for the
respondent has invited my attention to the decision of the
Delhi High Court in case of Faquira vrs. Smt. Raj Rani and
another, reported in AIR 1984 DELHI 168. Paragraphs 11
and 12 of the said decision being relevant, are reproduced
below.
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"11. One of the questions raised before us was whether
an appeal lay in the present case. We were first of the
view that no appeal lay because of the provisions of
Section 8 of the Act which are to be following effect :-
"8.Orders for sale to be deemed decree:-
Any order for sale made by the Court under Section 2, 3
or 4 shall be deemed to be a decree within the meaning
of Section 2 of the Code of Civil Procedure." At the
hearing of the appeal, it was stated before us that there
was no order directing sale under Sections 2, 3 or 4 and
therefore, we initially came to the view that no appeal
was competent in this case. On reserving judgment, we
found that the Court had ordered a sale without
complying with Section 2, 3 and 4 and was, therefore,
selling the property entirely without any authority of law.
We, therefore, directed re-hearing of the appeal. In our
view, the Act enables the property to be sold only in
accordance with Sections 2, 3 and 4 or by agreement
amongst the parties. The Court has no power to sell the
property in any other way. If the Court chooses to pass
an order for sale contrary to law, it is nevertheless a sale
which is illegal and, therefore, capable of being
challenged under Section 8.
12. The way we have understood the Section (Section
8), is as follows : The court can only pass an order
directing sale of the joint property under the provisions
of the Partition Act. It had no power to sell the property
except as provided in the Act. Whenever the Court
passes an order of sale, an appeal lies under Section 8.
This section does not mean that the Court has power to
sell the property otherwise than in accordance with the
Act and no appeal will then be competent. If such an
order is passed, it is an invalid order under Sections 2, 3
and 4 of the Act and is, therefore, capable of being
attacked in appeal. We, therefore, come to the
conclusion that this appeal is competent."
8] In view of the aforesaid law laid down by the
Division Bench decision of the Delhi High Court, the order of
resale passed on 15.04.1997 in the final decree proceedings
by the executing Court can be termed as an order having a
force of decree as contemplated by Section 8 of the Partition
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Act and therefore, an appeal before the lower appellate Court
was maintainable. The substantial question of law at Sr.No.1
is answered accordingly and it is held that the present
second appeal is against a decree passed by the lower
Appellate Court.
9] The answer to the second substantial question of
law framed by this Court would depend upon the adjudication
of the question as to whether the proceedings for execution
of a decree passed in a suit for partition are governed by the
provisions of Order XXI, Rules 84 and 85 of Civil Procedure
Code. The executing Court has recorded the finding that
such provision is applicable to the sale in question, whereas
the lower appellate Court has held that the sale was not
governed by Order XXI, Rules 84 and 85 of Civil Procedure
Code and therefore, the Court was competent to permit
deposit of the amount beyond the stipulated period. Such
adjudication could not have been done without report of the
Court Commissioner. The findings of both the Courts below
on this aspect need to be set aside, leaving it open for the
executing Court to decide it afresh upon receipt of the report
of the Court Commissioner, which has been held to be
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necessary to protect the interest of parties by the Apex Court
in the decision in case of Badri Narain, cited supra.
10] In view of above, the second appeal is party
allowed. The order dated 15.04.1997 passed by the
executing Court in Final Decree Proceeding along with
judgment and order dated 17.03.2003 passed in Regular Civil
Appeal No. 480 of 1998 by the lower appellate Court are
hereby quashed and set aside. Similarly, the order dated
09.08.1994 passed below Exh.1 in R.C.S No. 2005 of 1986 is
also quashed and set aside and the executing Court is
directed to appoint the Court Commissioner to ascertain as to
whether the property is divisible or indivisible and shall
thereafter proceed to decide the matter in accordance with
law.
The parties to appear before the executing Court
on 19.09.2016. The records and proceedings if are received
be sent back to the trial Court to decide the Regular Civil Suit
No. 2005 of 1986.
JUDGE
Rvjalit
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C E R T I F I C A T E
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Uploaded by : R.V.Jalit, P.A. Uploaded on : 23 August, 2016
