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Musammat Islam Fatima and ors. Vs. Zainuddin - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All148; 39Ind.Cas.951
AppellantMusammat Islam Fatima and ors.
RespondentZainuddin
Excerpt:
civil procedure code (act v of 1908), order xii, rule 23, applicability of, to final decree based on superseded report of commissioner - partition suit--court, duty of, in issuing commission. - .....should be divided, as nearly as might be, into two equal parts, which would then be assigned by a final decree to their respective owners. when the question of preparing a final decree was entered into the court of first instance issued first' one commission and then another, and eventually passed a final decree on the basis of the commission first issued. the lower appellate court has held that the commission first issued had in effect been withdrawn and superseded, so that it could no longer, appropriately be made the basis of a final decree. it is objected that under the 'circumstances the lower appellate court was not entitled to remand the case under order xli, rule 23 of the code of civil procedure, as it could not be said that the suit was decided on a preliminary point. it is,.....
Judgment:

1. This is an appeal against an order of remand, by the plaintiffs in a suit for partition, A preliminary decree had been drawn up which defined the rights of the parties in this way, that each party was entitled to a moiety share in the house in question and that the said house should be divided, as nearly as might be, into two equal parts, which would then be assigned by a final decree to their respective owners. When the question of preparing a final decree was entered into the Court of first instance issued first' one commission and then another, and eventually passed a final decree on the basis of the commission first issued. The lower Appellate Court has held that the commission first issued had in effect been withdrawn and superseded, so that it could no longer, appropriately be made the basis of a final decree. It is objected that under the 'circumstances the lower Appellate Court was not entitled to remand the case under Order XLI, Rule 23 of the Code of Civil Procedure, as it could not be said that the suit was decided on a preliminary point. It is, no doubt, a little difficult to apply the provisions of Order XLI, Rule 23, to the case of an appeal from a final decree, where there has already been a preliminary decree. We must, however, either hold that the provisions of this rule are not applicable at all in such a case, or that they must be used so far as they appear to be reasonably applicable. We think that the present is a case which shows the latter view to be correct. If the lower Appellate Court was right in holding that the final decree had been passed upon the report of a Commissioner who had been superseded, and whose report could' not legally be used as the basis of a final decree, it is scarcely possible to see what other course the lower Appellate Court could have followed than that of sending the case to the Court of first instance to be proceeded with de novo. On the question whether the Commissioner originally appointed was actually superseded by the Court of first instance, or ought to have been superseded by that Court, we have examined the record. An objection was taken to the Commissioner in question almost three weeks before his report was submitted, and the objection was to the effect that he was a brother of one of the Pleaders acting for the plaintiffs. We think that when a Court appoints a relative of one of the parties, or of their Pleaders, to act as a Commissioner in a matter of this sort, it certainly ought to get the consent of the opposite party. As we read the orders passed by the Courts below, it seems to us that the lower Appellate Court has taken a correct view of these orders, and that the Court of first instance did really supersede, the gentleman originally appointed to act as a Commissioner, and, did appoint the Amin of the Court to act instead of him. We think the order of the lower Appellate Court was justified in substance and in law. We dismiss this appeal with costs.


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