: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.128 OF 2010 ALONGWITH CIVIL APPLICATION NO.345 OF 2010 Sadashiv Anna Shinde .. Appellant V/s. Vasant Anna Shinde & Ors. .. Respondents Mrs. Neeta Karnik for the Appellant. Mr. R.A. Thorat for Respondent No.1. CORAM : SMT. NISHITA MHATRE, J. DATED : 6 TH APRIL, 2010. P.C.: 1. Admit. By consent, Appeal heard finally forthwith. 2. The Second Appeal has been preferred against the Judgment and Order passed by the Appellate Court, i.e. the Ad-hoc District Judge, Satara, on 12th January, 2010 in Regular Civil Appeal No.265 of 2009 and the decree dated 20th February, 2008 of the Civil Judge, Junior Division, Satara in Regular Darkhast No.12 of 2002. : 2 : 3. The substantial questions of law raised by the appellant are : (i). Whether the interpretation of the Appellate Court placed on Section 97 of the Code of Civil Procedure is erroneous as it has refused to decide the Appeal on merits on the ground that it was not filed within time ? (ii). Whether the trial Court could have passed a final decree based on the Commissioner’s Report without considering the objections raised by the appellant to the Commissioner’s Report ? 4. The main contention of the learned Advocate for the appellant is that the final decree has been drawn on the basis of the Commissioner’s Report, despite the objections raised by the appellant to the Commissioner’s Report. She submits that the trial Court has not considered the objections while : 3 : directing that the final decree be drawn up in view of the Commissioner’s report. The Appellate Court has confirmed the said decree. 5. In order to resolve the controversy as to whether there is inequitable distribution of the suit property amongst the appellant and the respondents, in my view, it would be appropriate to direct the Appellate Court to appoint a Commissioner who will take actual measurements of the suit property. The Commissioner will then file his report in respect of equitable distribution of the suit property in accordance with the shares which the parties are entitled to. While doing so, the Commissioner will also take note of the fact that the appellant contends that there is a road running through the property and that part of the suit property will soon be acquired. 6. The finding of the Appellate Court that the Appeal is not maintainable in view of the provisions of Section 97 of the Code of Civil Procedure, also cannot be accepted. An Appeal, such : 4 : as the present one, filed before the District Court, is certainly maintainable. The appellant has not challenged the preliminary decree before the Appellate Court. The challenge is only to the final decree as the appellant contends that the shares in the suit property have not been demarcated properly. There is no challenge to the apportionment of the shares which was made under the preliminary decree. 7. Accordingly, the Second Appeal is allowed. The Civil Appeal No.265 of 2009 is remanded to the Appellate Court for a decision afresh. The Appellate Court will decide the Appeal on merits taking note of the aforesaid observations in this order. 8. The Civil Appeal No.265 of 2009 shall be decided within a period of six months from today. 9. In view of the above, Civil Application No.345 of 2010 pending in the Second Appeal does not survive and the same is dismissed as infructuous.