In this appeal filed by the plaintiffs in a suit for partition, the judgment of the District Judge, Palakkad in A.S.No. 158/1995 by which he passed an order of remand is challenged. 2. After the passing of the preliminary decree for partition, a final decree application was filed. It was found that actual partition of the property was not possible. The court ordered sale of the property among the co-owners, for which it appointed a commissioner. The sale was adjourned at the request of one of the defendants. Later the property was sold on 09.06.1993 to the plaintiffs, who were the highest bidders. The commissioner filed a report before the trial court. Thereafter, he filed a supplementary report with regard to the share of profits also. The trial court considered both reports on 30.06.1994. It is seen from the certified copy of the order passed by the trial court in the final decree application that the parties “had no objection in passing a final decree in accordance with the commissioner's report”. It passed a final decree dividing the sale consideration among the co-owners in accordance with the preliminary decree. The plaintiffs/purchasers took delivery of the property and sold it to one Vasudevan Nair. Some of the defendants filed A.S.No.158/1995 challenging the final decree. There was a delay of 319 days. The purchaser was not made a party to the appeal or the delay condonation petition. Later, when the plaintiffs informed the appellate court about the sale of the property, the appellants impleaded the purchaser in the appeal, but not in the delay condonation petition. Notice to the purchaser happened to be published in the newspaper. He did not enter appearance. The appeal was allowed and the matter was remanded after setting aside the final decree. On getting notice from the trial court the purchaser filed an application in A.S.No.158/1995 to set aside the order of remand and to rehear the appeal. That was dismissed. It was challenged in C.M.A.No.241/1998. The purchaser died pending the C.M.A. and his legal representatives were impleaded. This court allowed the C.M.A. and directed the District Judge to consider the delay condonation petition and the appeal afresh. Both were heard. The learned District Judge allowed the delay condonation petition and heard the appeal again. By the impugned judgment, the learned District Judge allowed the appeal again and remanded the matter. This order of remand is challenged in this appeal.
3. The first ground on which the judgment of the District Judge is challenged is that no appeal was maintainable against a consent decree. There is no dispute about it. The question is whether the final decree was a consent decree. The relevant statements in the order passed by the learned Munsiff is this: “The parties have no objection in passing a final decree in accordance with the commissioner's report. Hence the commission report dated 21.06.1993 and supplementary report filed on 10.01.1994 are accepted in toto and marked as Exts. and C1 & C2”. A final decree was passed accordingly. The statement that the parties had no objection to a final decree being passed in accordance with the report of the commissioner certainly means that they consented to passing a final decree on the basis of the commission report. It is a consent decree. The appeal challenging the final decree was not at all maintainable.
4. The ground on which the learned District Judge set aside the final decree was that Rule 234 of Civil Rules of Practice was not complied with in as much as the sale was not conducted in the open court. Sub-rule (2) of Rule 234 of the Civil Rules of Practice is extracted below:
“(2) The sale when the bid is not open to strangers shall be held in open Court on a day to which the case is adjourned for the purpose. The highest bid shall be accepted and the sale confirmed at once unless the sale is adjourned to some other date.”
5. It is not in dispute that the sale was not conducted in the open court. What is its consequence? It is true that Rule 234(2) provides that the sale shall be held in open court. But as held by the Supreme Court in Salem Advocate Bar Association v. Union of India (AIR 2005 SC 3353) the use of the word 'shall' by itself is not conclusive to determine whether the provision is mandatory or directory. The statute does not provide for the consequences of violation of the rule. It means that the provision is only directory and not mandatory. The provision is made for the benefit of the parties. Public policy is not involved in it. The right can be waived. Lachoo Mal v. Radhey Shyam (AIR 1971 SC 2213) is an authority for it.
6. None of the parties objected to the sale by the commissioner otherwise than in open court. In fact the 6th respondent made a request in writing to the commissioner to adjourn the sale, which was granted by the commissioner. Even after the filing of the commission report the defendants did not challenge in the trial court the legality of the sale on the ground of violation of rule 234 (2) C.R.P. They waived their right under rule 234 (2) C.R.P. It is also pertinent to note that they filed the appeal long after the passing of the final decree and sale of the property by the plaintiffs/purchasers to a stranger, whose legal representatives are the appellants before this court.
7. Thus in any view of the matter the judgment passed by the learned District Judge by which he has made the order of remand is not legal. The order is liable to be set aside.
In the result, this appeal is allowed. The impugned judgment is set aside, and consequently, the order of remand also.
Sd/-
K. ABRAHAM MATHEW JUDGE //True copy// P.A. TO JUDGE shg/