Mungeshwar Sahoo, J.

1. This first appeal is directed against the Judgment and final decree dated 6th July. 1985 passed by the learned 5th Additional Subordinate Judge, Patna, in Title Suit No. 119 of 1962/2 of 1965. The plaintiffs suit for partition was decreed and according to the preliminary decree final decree was prepared, sealed and signed. The defendants first set have filed this appeal.

2. The learned Senior Counsel appearing on behalf of the appellants raised three points and submitted that on these grounds alone the main decree and judgment confirming the pleader commissioners report is liable to be set aside.

3. The first point raised by the learned Senior Counsel is that the Advocate Commissioners report on which the judgment has been based is without jurisdiction as the Court after appointing Advocate Commissioner did not issue notices to the defendants/appellants which is mandatory according to the requirement under Order XXVI Rule 18 of the C.P.C. In support of his contention the learned counsel relied upon a decision reported in A.I.R. 1962 Patna 211 (Smt. Mandera Mukherjee V/s. Sachindra Mukherjee and Ors.). The learned counsel with the help of this decision submitted that even if Advocate Commissioner issued notices, the defect under Order XXVI Rule 18 cannot be cured.

4. The next point raised by the learned Senior Counsel is that the Advocate Commissioners report suffers from error of records. To show error of records the learned counsel placed order sheets of the Pleader Commissioner dated 4.4.1984 and 16.4.1986 and submitted that in these order sheets the Advocate Commissioner mentioned that the defendants appeared and filed time petition whereas no time petition is on record nor there is anything to show that the defendants appeared. Likewise the learned counsel placed order sheet dated 23.3.1984 of the Advocate Commissioner and submitted that the Advocate Commissioner has mentioned in the order dated 23.3.1984 for which notices were issued to the defendants and further it is mentioned in order dated 4.4.1984 that two requisite cards mentioning refusal by the defendants had been received but these statements of the Advocate Commissioner are not supported by the record.

5. The learned counsel next raised question that the Advocate Commissioner held local inspection in absence of the defendants. On these grounds the learned counsel submitted that the appeal should be allowed.

6. On the other hand, learned counsel appearing for the respondents submitted that the partition suit is of the year 1962 and the final decree was passed in 1986 because of the lingering tactics adopted by the appellants. The learned counsel further submitted that the decision cited by the appellants, i.e., A.I.R. 1962 Patna 211 is not applicable in the present case. According to the learned counsel the appellants after appearance before the Advocate Commissioner did not object the jurisdiction of the Advocate Commissioner and, therefore, they participated in the final decree proceeding and waited for the result and now therefore, they are estopped from challenging either the jurisdiction of the Advocate Commissioner or the correctness of the report. The learned counsel further submitted that whatever statement is recorded by the Advocate Commissioner in his order sheets in the proceeding is quasi judicial proceeding and, therefore, the appellants cannot be allowed to challenge the same. In support of his contention he relied upon a decision reported in the 2010 (1) PLJR 695 (Pawan Kumar & another V/s. The State of Bihar and Others).

7. In view of the above contentions of the parties now let us examine the points one after the other. From perusal of the decision reported in A.I.R. 1962 Patna 211 (supra) it appears that in that case very appointment of the Advocate Commissioner without notice to the defendants by the court was under challenge. On 9.9.1956 a petition was filed on behalf of the plaintiffs for appointment of a ple