An application under Article 227 challenging an order accepting a Partition Commissioner's Report is maintainable until a final decree is passed in the partition suit.

JUDGMENT :

HIRANMAY BHATTACHARYYA, J.

1. The order dated 04.04.2024 passed by the Learned Civil Judge (Senior Division), 2nd Court, Tamluk, Purba Medinipur in T.S. No. 53 of 2013 is under challenge in C.O. 87 of 2025 at the instance of the defendants. By the order impugned, the Partition Commissioner’s Report dated 09.05.2016 in terms of the preliminary decree dated 25.03.2014 was accepted upon holding that the written objection filed by the petitioners against the Commission Report has no merit at all. By the self-same order, a Partition Commissioner was appointed to hold Commission in terms of the preliminary decree dated 30.09.2022 declaring the shares of the defendant no. 1 and 2 of the suit property and a date was fixed for filing Commissioner’s Report.

2. C.O. 2513 of 2025 is at the instance of the plaintiffs and is directed against the order dated 09.04.2025 passed by the Learned Civil Judge ( Junior Division) 1^st Court, Contai, Purba Medinipur in Title Suit No. 197 of 2009. By the said order, the report of the Partition Commissioner was accepted and the matter was disposed of with a direction to the office to draw the final decree as and when the stamp duty will be submitted in accordance with law.

3. In course of hearing of the aforesaid Civil Orders, a question arose whether an application under Article 227 of the Constitution of India challenging an order accepting a Partition Commissioner’s Report is maintainable.

4. Since a common question of law arose, both the Civil Orders were taken up for analogous hearing only on the point of maintainability of an application under Article 227 of the Constitution of India against an order accepting Partition Commissioner’s Report.

5. Mr. Ray, learned advocate appearing for the petitioner in C.O. 87 of 2025 contended that no appeal lies against an order accepting the Partition Commissioner’s Report and a Final Decree passed in a partition suit is an appealable decree. He submits that a Final Decree is yet to be passed in Title Suit No. 53 of 2013 and, therefore, an application under Article 227 of the Constitution of India is maintainable. In support of such contention, Mr. Roy placed reliance upon a Division Bench decision of the Hon’ble High Court at Calcutta delivered on 03.12.2024 in FAT No. 47 of 2022 in the case of Prasanna Kumar Koley and others vs. Biswanath Koley and a judgment of the Hon’ble Patna High Court reported at 1995 Supreme (Pat) 162 in the case of Uma Kant Jha vs. Shital Thakur .

6. Mr. Rajdip Bhattacharya, learned advocate for the opposite party in C.O. 87 of 2025 contended that a party aggrieved against an order accepting the report of the Partition Commissioner can raise all challenges to the report and the plan of the Commissioner in the appeal against final decree and not by way of revision. In support of such contention, he placed reliance upon an order dated 26.06.2018 passed by a co-ordinate bench in C.O. No. 1657 of 2018 in the case of Sanat Kumar Dey vs. Santanu Kumar Dey & Anr. and a judgment of the Hon’ble Kerala High Court reported at 2012 SCC Online Ker 6599 in the case of Papy George Perumpally Kunnu Veedu vs. Kutthiamma Kunjamma Perumpallly Kunnu Veedu .

7. Mr. Probal Mukherjee, learned Senior Advocate was appointed as Amicus Curie. Mr. Mukherjee submitted that there are two stage in a partition suit and the second stage is the stage when a final decree is passed. He contended that a final decree concludes the proceedings before the Court and the suit is treated to have come to an end for all practical purposes. In support of suc