1 AO 410 OF 2011 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.410 OF 2011 Shashi Rekha Dattatraya Motadoo and ors .. Appellants -versus Hanmant V Motadoo and ors .. Respondents. Mr. Tejas Deshpande, for the Appellants. Mr. A. Y. Sakhare, Senior Counsel, i/b Siddhartha Karpe, for respondent Nos 1 to.4. CORAM: A. S. OKA, J. DATED: 13th April, 2011 P.C. 1. Heard learned counsel appearing for the appellants. The appellants are the original defendants. The challenge is to the order of remand passed by the District Court. A final decree of partition was drawn by the Trial Court which was challenged in an appeal by the respondents-original Plaintiffs. By the impugned order, the Appellate Court has remanded the final decree proceeding with a direction to the trial Court “to appoint fresh Court Commissioner for necessary inquiry and report and for disposal of the case in accordance with law afresh”. 2. The learned counsel for the appellant submitted that the Court Commissioner’s report at Exh. 105 was accepted by the respondents and there was no grievance made as regards the Court Commissioner’s report. He 2 AO 410 OF 2011 submitted that while passing final decree, the trial Court has made only a minor variation in the suggestions incorporated in the report of the Court Commissioner. He submitted that for the reasons recorded, the trial Court accepted the plan at Exh. 109 submitted by the appellants and there was no error in the said reasons. 3. I have given careful consideration to the submissions. Perusal of the final decree passed by the trial Court which has been set aside by the impugned order shows that the Court did not pass the decree in terms of the suggestionS in the Commissioner’s report at Exh.105. It appears that another plan was submitted by the appellants- defendants at Exh.109 proposing a division which has been accepted by the trial Court while passing final decree. Perusal of paragraph No. 11 of the judgment of Appellate Court shows that the Appellate Court found that the plan at Exh.109 was not supported by the report of the Commissioner. The Appellate Court observed that if the report of the Commissioner was not acceptable, the trial Court could have appointed another Court Commissioner so that the procedure provided in Order Order XXVI, Rule 14 of Code of Civil Procedure, 1908, could have been followed. The impugned order permits the trial Court to appoint a new Commissioner. The appellants can always submit their suggestion in the form of plan at Exh.109 to the new Court Commissioner so that the 3 AO 410 OF 2011 Court Commissioner can consider the said suggestion. There is no error committed by the Appellate Court by passing an order of remand. In the circumstances no fault can be found with the order of remand. Appeal is accordingly dismissed. Hearing of the final decree proceeding is expedited and proceeding shall be concluded within a period of six months from today. 4. Civil Application No.581 of 2011 does not survive and the same is disposed of. (A.S. OKA, J.)