Chet Ram and Others vs Yudhishter and Others

V.K. Jhanji, J.—On a suit for partition filed by the right-holders of village Kasandi, Tehsil Gohana, District Sonepat, a preliminary decree for partition of Abadi Deh and Shamilat Deh was passed by the trial Court on 9.1.1973. The decree was passed for the benefit of all the right-holders. The trial Court appointed a Local Commissioner for making allotment and division of shares in terms of the preliminary decree. The Local Commissioner submitted his report. Against this report, Yudhishter son of Prabhu preferred Objections. The trial Court dismissed the said Objections made by Yudhishter, This order was challenged by Yudhishter as well as by his brother Sehdev and his son Abhimanyu, in appeal before the first appellate Court. The first appellate Court allowed the said appeal and set aside the order of the trial Court, with a direction to get necessary allotment in favour of the Objectors through an Agency of the Local Commissioner in the light of the observations made in the order. This order is being challenged by the petitioner in the present revision petition.

Mr. Bhoop Singh, Advocate, learned counsel for the petitioners contended that the order passed by the first appellate Court is absolutely without jurisdiction inasmuch as no appeal was maintainable against the order by Court confirming or varying the report of the Local Commissioner who was appointed to make allotment and division of the property.

On the other hand, Mr. J. S. Malik, Advocate, learned counsel for the respondents stated that after dismissal of the Objections filed by Yudhishter, final decree was passed on 24.4.1978, though an appeal was filed against the order dismissing the objection petition filed against the report of the Local Commissioner. He further submitted that before the first appellate Court, the appeal was filed on 15. 5. 1978 and therefore the same be taken to have been filed against the final decree.

After hearing learned counsel for the parties I am of the view that this revision petition deserves to succeed There is no gain-saying that an appeal is creation of a statute and there is no inherent power in the appellate Court to entertain an appeal Which is. not expressly provided by law. An appeal lies only against a decree or an order from which, appeal is expressly permitted by Order 43 Rule 1, Code of Civil Procedure. In the present case, the Court had passed a preliminary decree. The report was submitted by the Local Commissioner, which was objected to and after-considering the Objections, the trial Court dismissed the same. This order is neither a decree, nor an order appealable under Order 43, Rule 1 Code of Civil Procedure. No appeal lies against an order dismissing the Objections preferred against the report of the Local Commissioner who was appointed as such as per provisions of Order 26, rule 13, Code of Civil Procedure. His report was considered by the Court in terms of Order 26, rule 14 (3), Code of Civil Procedure, which provides that where the Court confirms or vanes the report or reports of the Commissioner, it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it may issue a new commission or make such other order as it thinks fit. The trial Court after dismissing the Objection petition, passed a final decree on 24.4.1978. Therefore, if the Objectors were aggrieved of the final decree which was passed in terms of report of the Local Commissioner, they could have challenged the same in an appeal before the first appellate Court as no appeal lies against the order by Court confirming or varying the report of the Local Commissioner passed under Order 26, rule 14(3), CPC For this, see decision in Pirthipal and Anr. v. Bhaskor and Ors. AIR 1926 Oudh 195, I am also not impressed by the argument of learned counsel for the respondents that the appeal against the order before the first appellate Court be taken to be an appeal against the final decree. The final decree was passed on 24.4.1978, but no appeal was preferred against the said decree. There is no such procedure under which, appeal against an order can be treated to be an appeal against a decree. Faced with this situation, learned counsel for the respondents submitted that he be permitted to file an appeal against the final decree, before the first appellate Court. No permission is required from this Court to file an appeal The respondents, if so advised, can always prefer an appeal alongwith an application for condonation of delay.

Resultantly, the revision petition is allowed, and the impugned order is set aside. No costs.