1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3258 OF 2009 Shridhar Nivrutti Aute. .. Petitioner Vs Jalindar Nivrutti Aute & Ors. .. Respondents -- Shri Sameer A. Kumbhakoni for the Petitioner. Shri Purushottam G. Chavan for Respondent Nos.1, 3, 4 and 8. Shri Vaibhav Gaikwad i/by Shri A.M. Kulkarni for Respondent Nos.2 and 5 to 7. -- CORAM : A.S.OKA, J. DATE : 8th January 2010. P.C: Heard learned counsel appearing for the Petitioner. The Petitioner is the original 2nd defendant in a suit for partition filed by the 2nd Respondent/original Plaintiff. A decree was passed in the said suit for partition by which the learned trial Judge held that the Plaintiff and the 1st to 5th Respondents have 1/6th share each in the suit property and that the Plaintiff and Defendant Nos. 2 and 4 are entitled for partition and separate possession of their respective 1/6th shares. A liberty was granted to other Defendants to claim partition of their respective shares after payment of requisite Court fee. As far as partition of the land is concerned, an order was passed under Section 54 of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code” ). Insofar as the house 2 property is concerned, it was directed that the partition of the house property be effected by appointing a Court Commissioner. 2. It appears that the learned trial Judge appointed a Court Commissioner who submitted his report dated 15th April, 2008. The Court Commissioner recorded an opinion that the house property cannot be conveniently partitioned and, therefore, the house property deserves to be sold. The present Petitioner made an application on 11th July, 2008 pointing out that he has spent substantial amount on the repairs to the house property. It is stated in the application that though he had supplied necessary documents to the Court Commissioner, the Court Commissioner has not done his duty and, therefore, an expert Engineer be appointed. An affidavit has been filed in support of the said application. The Petitioner also filed an objection to the report of the Court Commissioner. 3. It must be stated here that an application was made by the original Plaintiff/decree holder at Exhibit – 197 in which he stated that he was willing to sell his own share at the market value. An order was passed on the said application on 2nd January, 2009 directing that the parties should come forward and agree to the price of the house property and the price of the individual shares. The trial Court directed that on the next date, parties should come back before the Court and inform the Court about their decision. On 2nd January, 2009, the trial Court disposed of the application made by the Petitioner by recording that the Defendant 3 No.5 has shown willingness to purchase the shares of the other parties. The trial Court observed that prayer for appointing an Engineer made by the Petitioner cannot be acceded to. The challenge in this Petition is to the said order dated 2nd January, 2009. Learned counsel appearing for the Petitioner has made a detailed submissions on merits. 4. However, I find that it is not necessary to go into the merits of this Petition. Perusal of the decree passed in the suit for partition shows that the trial Court has adopted the course provided in Sub-rule (2) of Rule 18 of Order XX of the said Code by passing a preliminary decree in respect of the house property. Thereafter, the trial Court appointed the Court Commissioner in accordance with Rule 13 of Order XXVI of the said Code. The Commissioner has submitted his report in terms of Rule 14 of Order XXVI of the said Code. After considering the objections to the said report and after holding an inquiry, the learned trial Judge will have to pass an appropriate order in accordance with Sub-rule (3) of Rule 14 of Order XXVI of the said Code. The Court may accept the report and pass final decree. The Court may reject the report and issue a new commission or make such an order as it thinks fit. 5. If final decree is passed by the trial Court, the Petitioner can always challenge the order impugned while preferring an Appeal against the final decree. If the trial Court passes an order setting aside the report of the Court Commissioner, the Petitioner can always adopt appropriate 4 proceedings to challenge the said order if he is aggrieved by the said order. At that stage, the Petitioner can challenge the impugned order and that liberty will have to be reserved in favour of the Petitioner. If this Court in exercises of powers of superintendence and interferes during the pendency of the final decree proceeding, the same may delay the proceeding thereby causing prejudice to the parties. 6. Hence, the Writ Petition is not entertained and subject to observations made above and subject to liberty reserved in favour of the Petitioner, the same is rejected. All contentions of the parties on merits are expressly kept open. (A.S.OKA,J)