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2019 Supreme(Bom) 1401
IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
RAVINDRA V GHUGE, J.
Pramod - Appellant
Versus
Sow Sudha Krishna Kand - Respondent
Writ Petition No. 13163 of 2019
Decided On : 13-11-2019
Advocate Appeared:
L.B. Palod, Adv., M.S. Kulkarni, Adv.
The main legal point established in the judgment is the proper procedure for appointing a court commissioner for property division and the application of relevant legal provisions and principles established by the Supreme Court in similar cases.
Headnote:
Court Commissioner - Property Division - Order XLI Rule 5 of the Code of Civil Procedure - Shub Karan Bubna (2009) 9 SCC 689 - The court discussed the appointment of a court commissioner for property division and the relevant legal provisions under Order XLI Rule 5 of the Code of Civil Procedure. The court also highlighted the principles established in the case of Shub Karan Bubna (2009) 9 SCC 689, which outlined the procedure for converting a preliminary decree into a final decree for property division.
Fact of the Case:
The petitioner, a judgment debtor, challenged the order passed by the Executing Court regarding the appointment of a court commissioner for property division. The dispute arose from a suit for declaration and possession over a house property, which resulted in a decree granting equal shares to both parties. The petitioner's contention was that the entire property belonged to him, while the plaintiff claimed to have purchased the property with her own funds.
Finding of the Court:
The court found that the rejection of the plaintiff's previous application for the appointment of a court commissioner did not render the subsequent application untenable. The court emphasized that the rejection was based on a misconceived understanding of the law and did not align with the principles established by the Supreme Court. The court concluded that the impugned order was in line with the legal procedure and dismissed the Writ Petition.
Issues: The issues revolved around the appointment of a court commissioner for property division, the rejection of the plaintiff's previous application, and the interpretation of relevant legal provisions.
Ratio Decidendi: The court's decision was based on the interpretation of the legal provisions under Order XLI Rule 5 of the Code of Civil Procedure and the principles established in the case of Shub Karan Bubna (2009) 9 SCC 689 regarding the procedure for converting a preliminary decree into a final decree for property division.
Final Decision: The Writ Petition was dismissed as devoid of merit, and the rule was discharged.
JUDGMENT :
RAVINDRA V. GHUGE, J.
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. The petitioner is the judgment debtor, who is aggrieved by the order dated 07.09.2019 passed by the Executing Court, by which, the application exhibit 24 filed by the respondent/ decree holder in Final Decree Application No.3 of 2014 seeking appointment of a court commissioner, has been partly allowed.
3. It would be appropriate to reproduce the operative part of the impugned order hereunder :-
"(1) Application is allowed.
(2) Legal practitioner is hereby appointed as court commissioner.
(3) Both the parties shall file joint pursis regarding the name of Advocate.
(4) Commissioner is directed to visit the suit property and submit his proposal as to how the decree can be executed and as to how one half share can be given to D.H.
(5) Commissioner is directed not to put D.H. directly in possession of one half portion of the suit property.
(6) D.H. shall bear the commissioner fees.
(7) If there is no consensus regarding the name of commissioner, the Court will appoint the commissioner."
4. There is no dispute that the original plaintiff is the wife of the real brother of the petitioner. She preferred Special Civil Suit No.55 of 2007 seeking declaration and possession over the suit house property. The suit was decreed by judgment dated 25.06.2008, by which, the original plaintiff and the petitioner/original defendant, were given half share of the house property.
5. It is undisputed that both the litigating sides challenged the decree dated 25.06.2008 in a regular civil appeal and cross objection, which were dismissed by the judgment dated 06.12.2012. As such, both the parties were held to be entitled to equal shares in Plot No.111 in Survey No.11, in so far as the house property is concerned. Both preferred Second Appeal Nos.578 of 2013 and 581 of 2013 before this Court and both the Appeals are pending. By an order dated 21.03.2016, the Second Appellate Court recorded that the Appeals would be decided on the substantial question of law as to whether, the Courts below have committed an error in not considering the material given by the defendant as proof for the execution of the Will?
6. The contention of the plaintiff is that though she and her father-in-law (father of the present petitioner/defendant) are shown to be the joint owners of the property, it was the plaintiff, who had paid the entire consideration for purchasing the said plot. Subsequently, her father-in-law prepared a Will, which came to the knowledge of the parties after he passed away. Purportedly, half share is given to the defendant and half share is given to the plaintiff. The plaintiff has claimed the entire share as she claims to have purchased the said plot entirely from her money and neither her husband nor the petitioner, who is the real brother of her husband, have spent any amount. The petitioner/ defendant claims that the entire property belongs to him.
7. Civil Application No.5381 of 2017 was filed by the original plaintiff/Decree Holder seeking orders from this Court. On 09.06.2017, this Court (Coram : N.W.Sambre, J.) has passed the following order:-
"In view of the provisions of Order XLI Rule 5 of the Code of Civil Procedure, the learned Counsel for the applicant does not press the application, as it is expected of the executing Court to take note of the provisions of Order XLI Rule 5 of the Code of Civil Procedure. As such, Civil Application stands disposed of."
8. Order XLI Rule 5 of the Code of Civil Procedure reads as under:-
"Stay of proceedings and of execution
5. Stay by Appellate Court -
(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
[Explanation - An or
