Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 5356 of 2018 Petitioner :- Awdhesh Kumar Ojha Respondent :- Virendra Kumar Ojha And 3 Others Counsel for Petitioner :- Rahul Sahai
Hon'ble Manoj Kumar Gupta,J.
By means of instant petition filed under Article 227 of the Constitution, the petitioner has challenged the order dated 25.1.2017 passed by Civil Judge (Sr. Div.)/F.T.C., Ballia as well as the order dated 18.4.2018 passed by Additional District Judge/F.T.C. Ist, Ballia deciding Misc. Civil Appeal No. 25/2017. By order dated 25.1.2017, the trial Court has confirmed the kura/map prepared by Amin Paper No. 33Ga and has directed for preparation of final decree in a partition suit. There is a further direction that map Paper No. 33Ga2 and report Paper No. 32Ga2 submitted by Amin shall form part of final decree. Indisputably, with the passing of said order, the proceedings for preparation of final decree culminated. The exercise of preparation of final decree is a ministerial act, which has to follow, but merely on account of the said fact it cannot be said that proceedings for preparation for final decree are still pending. Thus, a regular appeal under Section 98 CPC would lie against such an order. The appeal filed by the applicant though labelled as Misc. Civil Appeal was in fact a regular appeal contemplated by Section 96 CPC. Consequently, after dismissal of the same, the remedy is to file a second appeal.
In such view of the matter, this Court is not inclined to entertain the instant petition filed under Article 227 of the Constitution. Accordingly, the instant petition is dismissed, with liberty to the petitioner to avail the remedy provided under the Code of Civil Procedure.
Certified copies of the impugned orders shall be returned to the learned counsel for the petitioner, after retaining a photo stat copy on record.
(Manoj Kumar Gupta, J.) Order Date :- 28.8.2018 AM/-