IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY THIRD DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION Nos.2926 of 2011 and 2927 of 2011 Between: Sri Gujjari Surya Prakash .. Petitioner AND Sri Gujjari Srinivas & 8 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION Nos.2926 of 2011 and 2927 of 2011 COMMON ORDER: The two civil revision petitions are directed against the orders passed by the Junior Civil Judge, Kalwakurthy, on 25.04.2011, in two interlocutory applications arising in O.S.No.41 of 2001. 2. I.A.No.889 of 2009 in O.S.No.41 of 2001 was filed by the revision petitioner/first defendant in the suit under Order XXVI Rule 13 of the Code of Civil Procedure, 1908 (for short, “C.P.C”) to appoint an Advocate Commissioner to divide the decree ‘A’ schedule property into two equal halves by metes and bounds and to conduct open public auction of the decree ‘B’ schedule property claiming that the decree, dated 31.12.2004, is preliminary in nature and has become final and has to be implemented. I.A.No.888 of 2009 was also filed by the revision petitioner/first defendant for passing a final decree in accordance with the allotment of half share each in the decree ‘A’ schedule property by metes and bounds and concerning the sale proceeds of the decree ‘B’ schedule property. The first defendant claimed in the affidavit in support of the application that the shares in the decree ‘A’ schedule property were not demarcated with respective boundaries and the decree ‘B’ schedule property has to be alienated as per the terms and conditions of the decree. 3. The applications were opposed by the first respondent/plaintiff contending that the decree, dated 31.12.2004, is not a preliminary decree and the question of passing any final decree in pursuance of the compromise decree which itself is final and which has been endorsed on proper stamp does not arise. Any violation of the terms and conditions of the compromise decree may leave the aggrieved party with appropriate remedies available under law by way of a separate suit and parties were already in possession of their respective extents. Therefore, question of demarcation does not arise. Appointment of an Advocate Commissioner for any open auction of the decree ‘B’ schedule property is untenable and illegal and Order XXVI Rule 13 C.P.C cannot be invoked. 4. The trial Court, in the order in I.A.No.889 of 2009, observed, with reference to the precedents cited before it, that the compromise decree was endorsed on the requisite non-judicial stamp and the plaintiff and the first defendant were respectively stated to be in possession of their half shares. Finding no further necessity for declaration of the rights of the parties in respect of the plaint ‘A’ schedule property, the trial Court negatived the request noting the absence of any necessity to divide the property by metes and bounds. The trial Court also observed that there is no statutory rule or provision in C.P.C for conduct of an auction by an Advocate Commissioner. 5. In I.A.No.888 of 2009, the trial Court passed a consequential order negativing the request. 6. The dismissal of the applications led the revision petitioner to approach this Court contending that mere mention in the decree of putting the parties in possession of their respective shares is insufficient for a division by metes and bounds and as the decree ‘B’ schedule property is indivisible, it has to be sold as per market value at the highest possible rate and the sale proceeds have to be shared equally between the plaintiff and the first defendant for which the plaintiff is not cooperating compelling an approach to the Court for appointment of an Advocate Commissioner for conducting an auction. The preliminary decree, dated 31.12.2004, has to be, therefore, implemented as requested in the two applications and, hence, the revisions. 7. Heard Sri G. Purushotham Rao, learned counsel for the revision petitioner/first defendant and Sri K. Sreenivas, learned counsel for the first respondent/plaintiff. Respondents 2 to 9 were stated to be not necessary parties to these revisions. 8. The point for consideration is whether there is any further necessity of passing a final decree in respect of the decree ‘A’ schedule property and in what manner Clause 5 of the compromise decree has to be implemented concerning the decree ‘B’ schedule property. 9. The decree, dated 31.12.2004, in O.S.No.41 of 2001, on the file of the Junior Civil Judge’s Court, Kalwakurthy, is a compromise decree and the second defendant opted out of the physical division of the properties by receiving Rs.2,50,000/- from the plaintiff and the first defendant. The plaintiff and the first defendant recorded their entitlement to half share each in plaint ‘A’ schedule lands which were already put in their possession. It was specified that the eastern half of Ac. 4.16 guntas belong to the plaintiff and the western half of Ac. 4.16 guntas belong to the first defendant. There is no further term or condition in the compromise decree referring to any need for further demarcation or identification of the respective shares of the plaintiff and the first defendant in the plaint ‘A’ schedule lands. When admittedly, the eastern and western halves of Ac. 4.16 guntas each were in the possession of the plaintiff and the first defendant respectively since much prior to the recording of the compromise by the Court and the passing of the compromise decree, absolutely, no valid reasons subsist for undertaking any further exercise of passing any final decree by identification and demarcation of the respective half shares by metes and bounds. A decree in a partition suit can be straight away final, if there was no further necessity of taking recourse to any further steps in recognizing and giving effect to the rights and interests of the parties in their respective shares and, therefore, the trial Court cannot be considered wrong insofar as it refused to consider passing of any final decree concerning plaint ‘A’ schedule lands. 10. Coming to the plaint ‘B’ schedule properties, Clause 5 of the compromise decree specifically recorded the entitlement of the plaintiff and the first defendant to half share each in the suit ‘B’ schedule properties including the open place under the stair case and the plaintiff was made entitled to negotiate and sell the suit schedule ‘B’ properties to the prospective buyers as per the market value prevailing in the vicinity at the highest possible rate and the amount of sale consideration was agreed to be shared equally by the plaintiff and the first defendant. Admittedly, the negotiations or sale as contemplated did not take place and the sharing of the sale consideration consequently did not follow. Irrespective of the truth or otherwise of the allegations of the first defendant about the plaintiff not cooperating or not acting upon Clause No.5 of the compromise decree, he cannot be denied the right to approach the competent Court for implementation of Clause 5 of the compromise decree in accordance with the procedure prescribed by law. 11. In considering what should have been the appropriate procedure to be followed in giving effect to such a clause in the decree, Sri K. Sreenivas, learned counsel for the first respondent/plaintiff rightly relied on RACHAKONDA VENKAT RAO VS. R. SATYA BAI (D) BY LR.[1], wherein the Apex Court noted that it is only where a decree, as a matter of fact, leaves something for the future like declaring the shares of the parties and the properties to be partitioned alone, the Court appoints a Commissioner to suggest a mode of partition in terms of Order XXVI Rule 13 C.P.C. However, if, as in the case before their Lordships, the compromise decree itself was a final partition between the parties, Order XXVI Rule 13 C.P.C. does not come into operation at all. 12. Hence, while noting that the first defendant did not approach the trial Court under an appropriate provision of law, the next question to be considered is what should have been the appropriate procedure. The provisions of the Partition Act, 1893 (for short, “the Act”), can be usefully referred to in this regard and Section 2 of the Act provides for the power of the Court to order sale instead of division in partition suits where the division of the property cannot reasonably or conveniently be made and a sale of the property and distribution of the proceeds will be more beneficial for all the share holders. In such an event, the civil Court would follow the procedure prescribed by Sections 2 to 7 of the Act in proceeding with such sale either among the shareholders or otherwise. 13. Sri K. Sreenivas, learned counsel also referred to RANI ALOKA DUDHORIA AND OTHERS VS. GOUTAM DUDHORIA AND OTHERS[2], wherein the Apex Court referred to the provisions of the Act and the procedure to be followed therein. The Apex Court observed that the Court has no power to direct sale, dehors the provisions of the Act and the inter play of the provisions of the Act with the provisions of C.P.C in this regard has been analysed by the Apex Court. 14. Sri G. Purushotham Rao, learned counsel for the revision petitioner referred to BADRI NARAIN PRASAD CHOUDHARY AND OTHERS VS. NIL RATAN SARKAR[3] again referring to the provisions of the Act and the pre-requisites for the exercise of the power under Section 3 of the Act have been enumerated by the Apex Court therein. 15. Given the said legal background, it is clear that the parties have agreed under Clause 5 of the compromise decree that physical division of the plaint ‘B’ schedule property between the plaintiff and the first defendant cannot reasonably or conveniently be made and it was for that reason, the sale of the properties and division of the sale consideration equally between them was contemplated and agreed upon. The compromise decree, dated 31.12.2004, having become final, there is no alternative for the parties except to give effect to the said clause in a manner permissible under law and, therefore, the Court has to proceed further under the provisions of the Act which mandates a direction for sale of the property and distribution of the proceeds subject to considering the application of any share holder for leave to buy in accordance with Section 3 of the Act and in due compliance with the provisions of Sections 2, 3, 6 and 7 of the Act in particular read with the relevant procedure prescribed by C.P.C. in this regard. In the event of Section 7 (b) of the Act having to be taken recourse to, the rules and procedure prescribed in C.P.C in respect of sales in execution of decrees subject to any rules prescribed by the High Court shall be followed. In such an event, the observation of the trial Court in its order in I.A.No.889 of 2009 that it is well settled law that there is no statutory rule or provision in C.P.C to conduct an auction by an Advocate Commissioner, therefore, appears to be not correct and the matter has to be, hence, remitted back for being dealt with under the Act appropriately. 16. Sri K. Sreenivas, learned counsel submitted that the possibility of a physical division of the decree ‘B’ schedule property is very much practical and may have to be considered. While it is not for the Court to compel the parties to go behind the contents of the compromise decree which had become final, it is always open to the parties to arrive at an understanding in this regard even during the pendency of the further proceedings before the trial Court. 17. Accordingly, insofar as the rejection of the request of the first defendant in O.S.No.41 of 2001 for appointment of an Advocate Commissioner and for passing a final decree in respect of the decree ‘A’ schedule property is concerned, the impugned orders of the trial Court, dated 25.04.2011, dismissing both the interlocutory applications are confirmed. Insofar as the decree ‘B’ schedule properties are concerned, the impugned orders of the trial Court in I.A. Nos. 888 and 889 of 2009 in O.S.No.41 of 2001, dated 25.04.2011, are set aside and the trial Court shall proceed further to consider the request of the first defendant in this regard in accordance with the provisions of the Act, more particularly, Sections 2, 3, 6 and 7 thereof and proceed to take further steps and determine the said applications in accordance with law to give effect to Clause 5 of the compromise decree, dated 31.12.2004. This order, however, does not preclude the parties from entering into any understanding to have the decree ‘B’ schedule property divided physically into two equal halves between the plaintiff and the first defendant or any other understanding without taking recourse to the sale of the property and equal division of the sale proceeds. The trial Court shall make every endeavour to determine the matter on merits as expeditiously as possible, preferably within a period of six (6) months from the date of communication of these orders. The Civil Revision Petitions are ordered, accordingly, without costs. _____________________ G. BHAVANI PRASAD, J Date: 23rd September, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION Nos.2926 of 2011 and 2927 of 2011 Date: 23rd September, 2011 KL [1] AIR 2003 SC 3322 [2] (2009) 13 Supreme Court Cases 569 [3] AIR 1978 SC 845