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2008 DIGILAW 2852 (MAD)

Raja Gounder & Others v. Gnanasoundaram & Others

2008-08-06

S.TAMILVANAN

body2008
Judgment :- Order This Civil Revision Petition has been preferred against the order, dated 18.01.2007 passed in I.A.No.357 of 2006 in O.S.No.776 of 1987 on the file of the Additional Subordinate Judge, Salem. 2. It is an admitted fact that the suit in O.S.No.776 of 1987 was filed by the respondents 1 and 2 herein as plaintiffs, seeking partition and separate possession. By the Judgment and Decree, dated 15.01.2001, preliminary decree for partition was passed by the court below. Aggrieved by which, no appeal has been preferred by the revision petitioners. Pursuant to the preliminary decree, final decree application was filed by the respondents 1 and 2 herein as plaintiffs, under Order 26 Rule 13 CPC for appointment of an Advocate Commissioner. The court below, as per the preliminary decree passed in the aforesaid suit, appointed Advocate Commissioner to effect partition of the property. Aggrieved by which, this Civil Revision Petition has been filed. 3. Mr. P. Mathivanan, learned counsel appearing for the revision petitioner would contend that the decree was not drafted by court below, as per the Judgment. Learned counsel appearing for the revision petitioner drew the attention of this court to the Judgment of the court below, dated 110. 2001 at paragraph number 11 of the Judgment. 4. Mr. D. Shivakumaran, learned counsel appearing for the respondents 1 and 2 contended that the court below has admittedly drafted the decree, only as per the operative portion of the Judgment available at page number 15. According to the learned counsel for the respondents / plaintiffs, there is no error or infirmity in the decree. 5. Order 26 Rule 13 of the Code of Civil Procedure reads as follows "Where a preliminary decree for partition has been passed, the court may in any case not provided for under Section 54, issue a commission to such persons, as it thinks fit to make the partition or separation, according to the rights as declared in such decree." Here in the instant case, as per the Judgment and Decree, the court below has declared the right of the respondents 1 and 2 / plaintiffs for the allotment of their share in the property. Admittedly, the revision petitioners have not challenged the Judgment and Decree before appellate forum, hence, it reached its finality and further, there is no error or infirmity in the impugned order in appointing Advocate Commissioner, as per Order 26 Rule 13 CPC to effect division of the property, as pr the preliminary decree. 6. This revision has been filed under Section 115 of the Code of Civil Procedure. As per Section 115 CPC, under the revisional jurisdiction, this court can interfere with the order passed by the court below, if there is no appeal lies thereto and if such subordinate Court appears to have exercised jurisdiction not vested in it by law, or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. 7. It is a well settled proposition of law that for invoking the revisional jurisdiction under Section 115 of CPC, the following requirements are needed: The impugned order should have been passed by a court, subordinate to this Court, against which no appeal lie and in addition to that, the court below could have exercised jurisdiction not vested in it by law, or failed to have exercise jurisdiction or to have acted in the exercise of its jurisdiction illegally or with material irregularity. 8. In the instant case, the impugned order has been passed by the subordinate court and there is no dispute that no appeal provision is available against the order. However to allow the revision petition, the revision petitioner should establish that the impugned order has been passed by the court below with material irregularity by exceeding its jurisdiction or fail to exercise its jurisdiction. 9. In the instant case, the court below has appointed an Advocate Commissioner, only as per Order 26 Rule 13 CPC, pursuant to the preliminary decree passed by the court below and therefore, it cannot be construed that the court below has exercised a jurisdiction not vested with the court below or to hold that there is any illegality or material irregularity, in order to interfere with the same, by way of revisional jurisdiction, under Section 115 CPC. 10. In such circumstances, I could find no error or infirmity in the impugned order to interfere with the same under Section 115 of the Code of Civil Procedure. 10. In such circumstances, I could find no error or infirmity in the impugned order to interfere with the same under Section 115 of the Code of Civil Procedure. Had the revision petitioners / defendants been aggrieved by the Judgment and Decree passed in the suit, they could have challenged the same, by way of preferring appeal or revision, as the case may be before the appropriate forum and not by way of challenging the appointment of Advocate Commissioner by the court below. As there is no illegality or material irregularity in the impugned order, as per the Code of Civil Procedure, hence, I hold that the Civil Revision Petition fails and accordingly, the same is dismissed. Consequently, connected miscellaneous petition is also dismissed. However, there is no order as to costs.