Smt. Malamma vs Doddegowda and Another

This revision u/s 115, CPC arises from the judgment and order dated 21-3-1994 on an application u/s 151, CPC passed by the Munsiff at Channarayapatna. The 3rd defendant namely the present respondent 1 filed the application u/s 151 before the Civil Court in the matter of partition suit namely Original Suit No. 5 of 1967 in which a preliminary decree had been passed on 30-10-1972 and in which final decree had been passed on 31-10-1987. The respondent 1 urged that in the preliminary decree, a direction had been issued that so far as Sy. No. 29/9 measuring 2.27 guntas is concerned, respondent had been the bona fide purchaser for value by virtue of sale deed dated 26-12-1966 and therefore that land be allotted in favour of the vendor of the land who sold that land to respondent 1. He submitted that the Deputy Commissioner to whom the decree had been sent for effecting the partition of Plot No. 29/9 has not allotted to him his share as directed in this Court and thereafter final decree was passed which was illegal and so it required review and modification so that preliminary decree could be complied with. The Court below considered the matter. It opined that the execution proceedings conducted by the Deputy Commissioner of Hassan was not conducted for the partition according to the preliminary decree and it set aside the final decree thereafter. Feeling aggrieved therefrom, the present applicant-1st plaintiff has come up in revision u/s 115.

I have heard Sri Padubidri Raghavendra Rao, learned Counsel for the revision petitioner and Sri S.V. Narayanamurthy, learned Counsel for the respondents.

Sri Padubidri Raghavendra Rao submitted that once the decree for partition has been sent u/s 54 to the Deputy Commissioner and he has effected the partition and final decree has been passed, Civil Court has no jurisdiction either to review that order or to set aside that, u/s 151 as once the matter has been sent to the Deputy Commissioner, he acts as an independent instrumentality or Tribunal or Court and the Civil Court has no jurisdiction to review. The proper remedy would have been to file an appeal. Therefore, the order impugned passed by the Civil Court is without jurisdiction.

These contentions of the applicant''s Counsel has been hotly contested alleging that when the directions under the preliminary decree has not been followed, decree was null and void and u/s 151 Court could review and set aside the order.

I have applied my mind to the contentions raised by the learned Counsel for the parties.

This question had arisen times again and a Division Bench of this Court in the case of Muppanna Halappa Mundas v Channappa Halappa Mundas Medleri and Another, as well as a Full Bench decision of this Court in the case of Ganapatrao Roajirao Desai v Balwant Krishnaji Desai and Others , have opined and laid down that once in the partition proceedings the decree is sent u/s 54 read with Order 21, Rule 18(1) of the CPC to the Special Deputy Commissioner/Collector, the Collector does not act either as a officer nor as an agent of the Civil Court, but in his own capacity as an independent Tribunal. The Full Bench has made reference to the Full Bench decision of the Madras High Court in Rajah Mantripragada Venkataraghava Rao v Rajah Mantripragada Venkata Hanumantha Rao , and Chief Court of Oudh in Abdul Ali v Mirza Viqah Ali Beg , have taken a view that the proceeding before the revenue authorities u/s 54 of the CPC is an independent proceeding and cannot be regarded as a proceeding in execution of a decree for partition passed by the Civil Court. Taking these two decisions into consideration, the Full Bench opined and laid it down that neither Section 151 was applicable nor there was any power to review that order. It laid it down that parties feel aggrieved from the partition effected by the order of the Collector u/s 54 of the CPC they have right of appeal u/s 203 of the provisions of the Bombay Land Revenue Code, to the Divisional Commissioner or to the officer immediately superior to the officer appointed for that purpose. These two decisions clearly lay down as a rule that Civil Court has no jurisdiction in the matter of proceedings u/s 54 read with Order 20, Rule 18(1), when the partition had been effected by the Collector, even on the ground that the Collector has contravened the terms of decree or transgressed the provisions of the matter.

In this view of the matter, the order impugned is per se without jurisdiction and deserves to be set aside. May be that respondent has proceeded under wrong provision. It is kept open, if law so permits and subject to law of limitation, he may file appeal challenging the act of the Commissioner.

Subject to these observations, revision is allowed. Order is set aside. Cost made easy.