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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR
S.M. MODAK, J.
Girish S/o Ramshankar Upadyay – Appellant
Versus
Sharad S/o Ramshankar Upadhyay – Respondent
Second Appeal Nos. 147, 148 of 2021
Decided On : 21-01-2022
Civil Procedural Code, 1908 - Section 35 - Order XXVI - Rules 13 and 14 - Order XXI Rule 64, 66(2) - Order XXVI Rule 13 - Partition Act, 1893 - Section 2, 2(2), 6 - Second Appeal - Suit for Partition - Court has declared 1/5th share in the suit properties each to the plaintiff and four defendants - Whether property can be divided as per shares declared in preliminary decree – Held, First Appellate Court has not commented anything about requirement of valuation of property prior to sale - First Appellate Court has not commented upon requirement of satisfaction by Executing Court prior to accepting report of Court Commissioner - It was not proper on part of Appellate Court to consider lacuna as mere irregularity - It is true that “formal order that final decree be drawn” can be said to be an irregularity - But what is illegality is not following provisions of Partition Act and specifically not valuing property prior to ordering its sale - Lacunas can be said to be irregularity if they relates to minor issues which do not touches substantive rights of litigating parties - Sale of property without valuation is certainly an illegality - Because it nowhere protects interest of either of parties in fetching correct market value - It is true that Rules of Procedure are handmade of justice as held in case as referred above - It is also true that a particular procedure is permitted for doing justice unless expressly prohibited and it is also true that procedure prohibited cannot be followed - Section 151 of Code gives inherent power to Court to do justice between parties - However, thus said power cannot be exercised by giving go by to existing procedure as per law - It is also true that Court should endeavor to give benefits of decree to parties as held in case as referred above - It is also true that in any endeavor to give benefits of decree to a party, there should not be go bye to procedure - This Court is inclined to set aside judgment impugned in these appeals and to set aside two impugned orders passed by Executing Court - Second Appeal allowed.
JUDGMENT :
S.M. MODAK, J.
1. The suit for partition bearing Special Civil Suit No. 29/1996 filed by one Anantrai Ramashankar Upadhyay was decreed on 13th October, 2003. The trial Court has declared 1/5th share in the suit properties each to the plaintiff and four defendants. The house in respect of which dispute is pending in these two appeals is one of those suit properties. The house is described as Upadhyay Niwas situated on Nagpur, Wardha Road and one Godown. The house consists of ground floor and two upper floors. It seems that it is the old house in which common ancestor deceased-Ramashankar and his family members used to reside.
2. The correctness of the said decree was tested before the First Appellate Court, before this Court and finally before the Hon’ble Apex Court. The proceedings were dismissed by the Hon’ble Apex Court on 23rd September, 2019.
Suit for Partition
3. The suit for partition was mainly contested by defendant No. 4-Girish Upadhyay and defendant No. 9-Chirag Upadhyay. They are the appellants in present Second Appeal 147/2021. They have pleaded that deceased-Ramashankar had executed a Will during his lifetime and bequeathed the present property to defendant No. 9-Chirag Upadhyay and one Jaikishan Upadhyay (he was not a party defendant). They are the sons of defendant No. 4-Girish Upadhyay. The said sons and their father are the appellants in present Second Appeal No. 148/2021.
Execution
4. The two orders dated 17th March, 2018 which are challenged before this Court are passed in F.D.P. No. 9/2003 and 10/2003. F.D.P. No. 9/2003 was filed by Sharad Ramashankar Upadhyay (defendant No. 3), Jatin Sharad Upadhyay (defendant No. 7) and Pratik Sharad Upadhyay (defendant No. 8). Defendant Nos. 7 and 8 are the sons of Sharad Ramashankar Upadhyay. Sharad Upadhyay was declared with 1/5th share. Other F.D.P. No. 10/2003 is filed by plaintiff Anantrai Ramashankar Upadhyay. Other sharers are the opponents in those proceedings. One Wardha Nagri Sahakari Adhikosh Maryadit was defendant No. 5 in the suit (in whose favour there was a mortgage deed executed by some of the sharers). They are one of the respondent in these appeals.
5. The applicants in those final decree proceedings have prayed for:
(This is one of the prayer with which we are concerned in these Appeals)
6. The executing Court i.e. Joint Civil Judge (Senior Division), Wardha passed following orders in those proceedings on 13.10.2008:
(b) Chartered Account is appointed to verify accounts.
At the same time simultaneously appeal challenging partition decree was pending adjudication.
Report of Court Commissioner
7. The Court Commissioner submitted his report on 5th July, 2006 (Exh.44). He has opined that the house property is not capable of partition and accordingly, he has advised for sell of that property. This is the background for passing of the two impugned orders by the Executing Court. By those Orders, sale of house property is ordered by public auction.
8. After this report, nothing happened till 17th March, 2018. The Executing Court, as per the order dated 13th October, 2008, has stayed both the final decree proceedings as the First Appeal No. 123/2004 was pending in this Court. The respective applicants in both the proceedings made request for sale of the house property as per the report of learned Court Commissioner. Those applications were filed at Exh.47 (FDP No. 9/2003) and at Exh.33 (FDP No. 10/2003). The Executing Court ordered sale of the house property by public auction as per two separate orders passed on 17th March, 2018.
First Appeal
9. These two orders challenged by present appellants before District Court, Wardha by preferring RCA No. 79/2020 and RCA No. 78/2020. Their appeals came to b
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