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Judgment
R. Banumathi, J.—This revision is directed against the order of the First Assistant Sessions Judge, City Civil Court, Chennai, made in I.A.
No. 22236/1997 in O.S. No. 5270/1983, accepting the Commissioner''s Report and ordering the suit property to be sold in Public Auction.
Defendants 2 to 4 are the Revision Petitioners.
The Plaintiffs and the Defendants 1, 3 to 5 are the sons and daughters of late Ramachandran and the second Defendant/Rukmani Ammal (since
deceased). Suit property is a joint family property at Door No. 3, Lawyer Chinnathambi Street, I Lane, Old Washermanpet, Madras-4. Plaintiff''s
father Ramachandran died intestate on 28.4.1961 leaving behind him the Plaintiff and the Defendants 1, 3 to 5 and his wife D-2 as his legal heirs.
Plaintiff filed O.S. No. 5270/1983 claiming his 6/15th share in ''A'' schedule property and directing the Plaintiff and the Defendants 1, 3 to 5,
proportionately to pay the liabilities mentioned in the ''B'' Schedule.
Preliminary Decree for partition was passed on 29.10.1996, ordering that the suit property is to be divided into five equal shares and to allot
two equal shares to the Plaintiff. The Plaintiff has filed I.A. No. 22236/1997 to appoint an Advocate Commissioner to divide the property in terms
of the Preliminary Decree by appointing an Advocate Commissioner. The Commissioner has inspected the suit property and filed his Report stating
that the suit property is indivisible. On such report, the First Assistant Judge passed the impugned order accepting the Commissioner''s Report on
the only ground that the Petitioner/Plaintiff is not agreeable for any settlement. The impugned order dated 15.7.2003 reads ::
Order dated 15.7.2003
Both sides present. Petitioner is not agreeable for any settlement. Hence the Commissioner''s report is accepted. The suit property is ordered to be
sold by public auction. Thiru Sanjay Gandhi, Advocate is appointed as Commissioner, to sell the suit property. His remuneration will be fixed later.
Report by 22.8.2003.
Aggrieved over the impugned order appointing the Advocate Commissioner, to sell the suit property in public auction, the Defendants 3 to 5
have filed this revision. The learned counsel for the Revision Petitioners submitted that the lower Court erred in accepting the Commissioner''s
Report merely on the ground that the first Respondent/Plaintiff was not agreeable for any settlement. It is further submitted that the trial Court ought
to have given opportunity to the parties to adduce evidence to establish the mode of partition.
The Respondents were served but not entered appearance.
Even at the outset, the infirmity and error in the impugned order is to be pointed out. Upon filing of the Commissioner''s Report, if the parties are
not agreeable for any settlement, the learned Assistant Judge ought to have directed the parties to file the objection. If necessary, the learned Judge
ought to have held an enquiry and passed appropriate orders. Without giving such opportunity, the Commissioner''s Report cannot be accepted
and ordering sale of the suit property in public auction cannot be made. The parties are to be heard before passing any such order directing public
sale of the property. The impugned order suffers from material irregularity in not affording opportunity to the parties and the order is to be set
aside.
Therefore, the order of the First Assistant Judge, City Civil Court, Chennai, made in I.A. No. 22236/1997 in O.S. No. 5270/1983 dated
15.7.2003 is set aside and this revision is allowed. The learned First Assistant Judge is directed to give opportunity to the parties to file their
objection to the Commissioner''s Report and hold appropriate enquiry thereon and then pass orders in accordance with law. C.M.P. No.
18411/2003 is closed. In such circumstances of the case, there is no order as to costs.