An order passed by a Court confirming the report of a Pleader Commissioner in a partition suit is not appealable under Order XLIII Rule 1 or Section 96 of C.P.C. The only remedy against such order is revision under Section 115 of C.P.C.

S.J.Mukhopadhaya, J.

1. The petitioners are Defendant Nos. 17 and 18 in the court below. They have challenged the impugned order dated 25th August, 1994 passed in Partition Suit No. 111/71 by the learned Munsif, I. Madhubani.

2. After the preliminary decree made in the partition suit, the survey knowing Pleader Commissioner was appointed. He submitted report. After hearing the objection of all die parties, by the impugned order dated 25th August 1994, the learned Munsif, I, Madhubani has accepted the report of the Pleader Commissioner, namely, Shri Madan Mohan Mishra and confirmed the same.

3. The defendants petitioners have challenged the aforesaid impugned order dated 25th August 1994, by which court below accepted and confirmed the report of the pleader Commissioner, Shri Madan Mohan Mishra; by filing the present Civil revision application.

4. The office of this Court by its stamp report has raised an objection regarding maintainability of the present civil revision application against such order. Counsels on behalf of Opposite Party Nos. 2, 3, 4 and 5 have also raised the question of maintainability of the present civil revision application-. According to the counsel for the Opposite Parties aforesaid, the civil revision application is not maintainable, the impugned order being final and having become a part and parcel of the judgment, the petitioners should have moved by filing appeal against the impugned order, after Final decree

5. According to the petitioners, the civil revision application is maintainable. The impugned order accepting the report of the Pleader Commissioner and confirming the same is independent in nature, prior to preparation of final decree, it cannot be stated to be a part of the judgment and thereby, according to them, the civil revision is maintainable.

6. Both the parties relied on different provisions of Civil Procedure Code to substantiate their argument and thereby justified their arguments.

7. For the proper appreciation of law, I feel certain provisions of C.P.C. are to be taken into note. Sec. 2(2) of C.P.C. laid down the definition of "decree", which includes preliminary decree as well as the final decree. Order XX Rule 18 of C.P.C. stipulates decree in a partition suit, Sub-rule (2) of Rule 18 thereto, provides the power to the court as to how partition of immovable property is to be conveniently made. It has been laid down therein that the Court may itself make such partition or separation conveniently. If there is any difficulty in making such partition or separation conveniently, then to pass only a preliminary decree declaring the rights of several parties interested in the property and giving such further direction, as may be required It is at this stage, Order XXVI Rule 14 of C.P.C. comes into play. Under Rule 14 of Order XXVI, the Court is to appoint a Pleader Commissioner to give report or reports, for the purpose of preparation of Takhta, Sub-rule (3) of Rule 14 of said Order XXVI, C.P.C. stipulates the power of the Court either to conform or vary with the report of the Pleader Commissioner and/or to set aside the report and appoint a new Pleader Commissioner for the purpose of passing such order as the court thinks fit.

8. From the aforesaid provisions of C.P.C. "Sec. 2(2), Order XX Rule 18 and Order XXVI Rule 14", the following fact emerges:

i. in a partition suit, there may be preliminary decree as well as final decree and/or only a final decree, if the court itself in a position to curb out the Takhta; and

ii. in the case of preliminary decree in a partition suit, after the confirmation of the Pleader Commissioners report, nothing remains except to prepare the final decree.

9. Now the question comes as to whether a person is to move in appeal against an order confirming the report of Pleader Commissioner, which is to be passed after the preliminary decree and/or the person is to move for revision under Section 115 of the C.P.C.

The only provisions laid down under C.P.