[1.0] Present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 has been preferred by the applicant herein to quash and set aside the impugned order passed by the learned Civil Judge (SD), Gandevi passed below Exhs.241 and 242 in Regular Civil Suit No.22/1974 by which the learned trial Court has partly allowed the objection raised by the applicant and others against the report submitted by the Court Commissioner while considering the preliminary decree. [2.0] Facts leading to filing of the present Civil Revision Application in nutshell are as under:
[2.1] That Regular Civil Suit No.22/1974 was filed by one Rameshchandra Chhaganlal Rana against Nathubhai Kalidas and others for the partition of the properties mentioned in the suit and for taking account. The defendants (1) Nathubhai Kalidas, (2) Mansukhlal Chhaganlal and (3) Ranchhoddas Lallubhai had died pending the suit and so their legal heirs were brought on record. The Joint Civil Judge (J.D.), Gandevi has decreed the suit and declared the share and appointed a commissioner for taking account and to partition the properties amongst the parties by passing a judgment and preliminary decree dated 28.06.1986.
[2.2] After the passing of the preliminary decree, Court commissioner was appointed to carry out the work as per the judgment and preliminary decree. The commissioner started his work. He submitted his report Exh.57 dated 30.09.1995 whereby he sought direction of the Court. On that report of the commissioner, the Court gave direction by order dated 23.04.1996. Thereafter, the Commissioner again started his work and carried out the said work. Thereafter being aggrieved by the work done by the Commissioner, on the basis of his report for direction Exh.57, the applicant herein and original defendant Nos.1/2 and 3 filed their objections at Exh.241 in the suit. Similarly, original defendant No.5 of the suit also filed similar objections at Exh.242. The learned Civil Judge after hearing the concerned parties, partly allowed the objections and directed the Commissioner to make assessment of the properties as per the possession held by the parties on the spot. The Court also ordered as to how the properties bearing Muni. No.2814 and 2815 be given and partitioned amongst the concerned parties. The Court also ordered the Commissioner to submit report on or before 31.01.1998 and also directed the original defendant No.1 to 8 to pay Rs.1000/ towards remuneration of the Commissioner. This order is a common order, passed on 31.12.1997 on the above said objections submitted vide Exhs.241 and 242. This order is challenged by the present Civil Revision Application by the applicant herein.
[3.0] Today, when the present Civil Revision Application is taken up for final hearing, there is broad consensus between the learned advocates appearing for respective parties that whatever the objections raised by the parties against the report of the Court Commissioner may be permitted to be taken up and considered at the time of drawing final decree and the present Civil Revision Application be disposed of accordingly.
[4.0] In view of the above, present Civil Revision Application is disposed of by observing that whatever the objections which might be there of the respective parties against the Commissioner's report, the same may be permitted to be raised before the learned trial Court at the time of drawing of final decree in accordance with law and on merits and after giving an opportunity to all concerned. Considering the fact that the suit is of the year 1974, learned trial Court is directed to finally decide and dispose of the said suit and pass final decree in accordance with law and on merits and after following due procedure as required at the earliest but not later than 30th June 2013.
[5.0] With this, present Civil Revision Application is disposed of. Registry is directed to send the writ of this order to the learned trial Court immediately. In the meantime, it will be open for either of the parties to submit an appropriate application for interim order before the learned trial Court which be considered in accordance with law and on merits.
(M.R. Shah, J.) menon