Ram Pyare v. Shambhu Nath Rai — 1997 DIGILAW 566 (ALL)

JUDGMENT S. K. Phaujdar, J. (1.) THE matter was once disposed of by a judgment dated 27.3.1997. THE appeal was then dismissed on a preliminary objection on maintainability as the Court was of the view that the final decree had not been drawn at all. Immediately after the recording of that order, the learned counsel for the appellant traced out the final decree in the records. After hearing both the parties, the order dated 27.3.1997 was reviewed and recalled and the matter was heard on merits. (2.) THE second appeal in question arose from Civil Appeal No. 273 of 1984 decided by the Civil Judge, Azamgarh on 6.1.89. This civil appeal was again directed against the decision dated 28.1.1984 In Original Suit No. 409 of 1966 recorded by the Munsif, Mohammedabad, Azamgarh. There had been a suit for partition between the parties and a preliminary decree was recorded and there had been an appeal as well. In terms of the decree of the trial court and the appellate court, the decree-holder and the respondent No. 4 were to get half share each in the suit property. The Munsif was approached for drawing up a final decree to effect the partition according to the decreed shares by metes and bounds. An advocate-Commissioner was deputed and his report was submitted before the Munsif. This report of the advocate-Commissioner was objected to by the defendant-judgment-debtor and after hearing the parties, the court rejected the objection of the defendant and directed that final decree be drawn up In terms of the report and the map prepared by the advocate-Commissioner. (3.) AS aforesaid, this order was challenged in appeal before the Civil Judge, Azamgarh. The appellate court considered the objection raised by the appellants before it. One of the objections was that certain land in possession of the decree-holder which was really a joint property of the parties was not included in the partition. The advocate-Commissioner had included other lands also in his report for partition which were beyond the suit and in making the partition the respective possession of the parties was not at all honoured. It was further objected that the advocate-Commissioner had not made any arrangement for any passage to the respective shares of the parties. The objections were taken up individually and were rejected. It was further objected that the advocate-Commissioner had not made any arrangement for any passage to the respective shares of the parties. The objections were taken up individually and were rejected. The appellate court observed that the order dated 28.1.1984 directing preparation of final decree was legal and could not be Interfered with. During hearing of the first appeal, the Commissioner's report, dakhalnama in terms of the final decree were placed before the court and the court had found from a perusal of these papers that the decree-holder got possession in terms of these papers. (4.) THIS second appeal was admitted on 4.5.1989 on question No. 2, as indicated in page 6 of the memorandum of appeal. The question was framed as follows : "Is the judgment of the lower appellate court vitiated in law on account of its having illegally permitted additional evidence to be accepted at the appellate stage and to have placed reliance on the same though it was wholly irrelevant as being dakhalnama of another case treating as dakhalnama of the instant case?" A preliminary objection was taken by Sri Faujdar Rai on the competence of the first appeal itself. It was stated that on the date of first appeal, no final decree was prepared and the order appealed against was only one disposing of an objection against the report of the advocate-Commissioner and that order was not open to appeal. It was stated that there being an incompetent first appeal, a second appeal would not lie at all. There is no factual dispute that after a preliminary decree an advocate-Commissioner was deputed to make the partition in terms of the decree. The relevant law is contained in Order XXVI of the C. P. C. Rule 13 under this Order provides that where a preliminary decree for partition has been passed, the court may, in any case, not provided by Section 54, issue a Commission to such person as it thinks fit to make the partition or separation according to the rights as declared In such decree. Rule 14 speaks about the procedure to be adopted by such Commissioner appointed for making the partition. The Commissioner is required to divide the property into as many shares as may be directed under the order under which the Commission was issued. He has to do it after such enquiry as may be necessary. Rule 14 speaks about the procedure to be adopted by such Commissioner appointed for making the partition. The Commissioner is required to divide the property into as many shares as may be directed under the order under which the Commission was issued. He has to do it after such enquiry as may be necessary. He is to partition such share to the parties and, if authorised thereto by the order issuing the Commission, the Commissioner may award sums to be paid for the purpose of equalising the value of the shares. The Commissioner is also required to prepare a signed report apportioning the shares of each party and distinguishing each share by metes and bounds. Such report is to be transmitted to the court which had issued the Commission. After the receipt of the report, the court is to hear any objection which the parties may make to the report and the court would thereafter confirm, vary or set aside the report. Rule 14 (3) provides that where the court confirms the report, it shall pass a decree In accordance with the report so confirmed. In case the court sets aside the report, it would issue a new Commission to make such order as it shall think fit. (5.) It was contended by Sri Faujdar Rai that the order dated 28.1.84 had simply confirmed the report and rejected the objection of the defendant against such report. This confirmation was to be followed by a decree as required under Order XXVI, Rule 14 (3), The learned counsel also drew my attention to the definition of "decree" to say that a decree must be a formal expression of an adjudication which, so far as the recordings expressing it are concerned, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may either be preliminary or final. The explanation to this definition of "decree" states that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. IT is final when such adjudication completely disposes of the suit. The learned counsel also drew my attention to the provisions of Order XX, Rules 6 and 6A.C. P. C. Rule 6 speaks about contents of a decree and it states that the decree shall agree with the judgment. IT is final when such adjudication completely disposes of the suit. The learned counsel also drew my attention to the provisions of Order XX, Rules 6 and 6A.C. P. C. Rule 6 speaks about contents of a decree and it states that the decree shall agree with the judgment. Rule 6A requires that the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. IT was contended that these rules would be applicable for final decree as well and the mere order of rejecting an objection and confirming the report may not be read as a Judgment which may be followed by a decree. (6.) IN this connection and in support of his contention Sri Faujdar Rai relied upon several case-laws. The earliest one stands in AIR 1926 Oudh 195. It was held herein, in explaining the provisions of Order XXVI, Rule 14 (3), C. P. C, that no appeal would lie against an order of a court confirming or varying a report of the Commissioner to make a partition. It was not even an order made appealable under the provisions of Order XLIII, Rule 1. The High Court accordingly dismissed the first appeal preferred against such an order of confirmation. Reliance was also placed on the decision in AIR 1969 Pat 284. Here also the matter related to a suit for partition. A preliminary decree was passed and the final decree was directed to be drafted on filing of non-judicial stamp. The plaintiff died at that stage. The court had directed substitution of his heirs in his place. The High Court observed that a copy of the final decree could not be had at that time and no appeal could be preferred at that stage. It was directed in the judgment of the trial court: "Let final decree be drawn up upon filing of non-Judicial stamp of requisited value. The Commissioner's report shall form part of the decree". The stamps were, however, not filed when the appeal was preferred and the aforesaid observation was made by the High Court that the appeal could not be preferred at that stage. On behalf of the appellant, reliance was placed on a decision of the Calcutta High Court in AIR 1928 Cal 63. The stamps were, however, not filed when the appeal was preferred and the aforesaid observation was made by the High Court that the appeal could not be preferred at that stage. On behalf of the appellant, reliance was placed on a decision of the Calcutta High Court in AIR 1928 Cal 63. It was observed herein that the report and map prepared by the Commissioner in one suit could be admitted in another suit only if the Commissioner was examined. This was spoken of in explaining the provisions of Order XXVI, Rule 10 (2), C.P.C. Reference was also made to the decision in AIR 1936 Oudh. 192. A commission, was issued by the civil court to make a local Inspection and report. His report did not fall within Section 35 of the Evidence Act and It could come on record only after the examination of the writer of the report as a witness. It was further held that when some finding of fact had been arrived at on Inadmissible evidence, the High Court had a right to intervene even in a second appeal. (7.) THE facts that emerged from the materials on record are that the order dated 28.1.1984 was basically one to consider the objection against the report of the Commissioner. THE appeal was filed on 4.2.1984 whereas the final decree was prepared on 5.3.1984. I may not agree with the contention of Sri Faujdar Rai that even a final decree would require a judgment to precede the decree. THE C. P. C. conceives a situation where a preliminary decree is to be followed by a final decree under certain circumstances to give a final shape to the dispute. But there Is nothing In the C. P. C. or in our conception of law that judgments could also be split up in two stages, one being a preliminary Judgment and the other a final Judgment. Judgment is always one and It dictates the rights of the parties and also dictates how the same are to be effected. For a final decree, therefore, no further judgment is necessary and in this connection I may refer to the decision of the High Court as In AIR 1957 All 107 . It was a case where a suit was dismissed for default and an objection was taken that the decree prepared thereafter was not preceded by a judgment. For a final decree, therefore, no further judgment is necessary and in this connection I may refer to the decision of the High Court as In AIR 1957 All 107 . It was a case where a suit was dismissed for default and an objection was taken that the decree prepared thereafter was not preceded by a judgment. THE court observed that a decree did not depend upon the quality of the judgment but upon the fact that the court had given formal expression of an adjudication which conclusively determined the rights of the parties. Thus, the objection of the learned counsel may not be upheld when he says that the decree that was drawn up was not preceded by a judgment and hence was not a decree at all. (8.) BUT there is sufficient force in the argument of Sri Rai that the order dated 28.1.1984 could not be read as a final decree and as such was not open to appeal. As indicated above, the appeal was preferred on 4.2.1984, almost immediately after the recording of the order dated 28.1.1984 and a decree followed only on 5.3.1984. The appeal could have been filed against the final decree and not against the order rejecting an objection and confirming a report of the Commissioner. There being no appeal against confirmation of a report of a Commissioner, the first appeal itself was incompetent as premature and the resultant second appeal must also be deemed to be Incompetent. It would be another matter, if after the drawing up of the final decree, a second appeal may or may not be preferred. but on the basis of law explained by the courts, the mere order of rejection of an objection of the defendant against the report of the Commissioner and there order of confirmation of that report was not appealable. The second appeal is also incompetent accordingly and is dismissed. In the circumstances of the case, no costs need be awarded. The parties are relegated to the position of their rights and liabilities that had accrued on the passing of the final decree after the order impugned, with right to challenge It in accordance with law.