The High Court confirmed the appointment of an Advocate Commissioner under a compromise memo in a partition suit. The bench ordered the trial court to attempt mediation due to the sibling relationship before executing the final decree.
Revision Petition confirmed; Trial Court directed to consider mediation before passing final decree.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.08.2017
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
CRP (NPD) NO.2285 of 2017
and CMP No. 10767 of 2017
Palaniraja ... Petitioner
versus
Sochammal (died)
1.Isvary
2.Tamilselvy @ Selvy ... Respondents
PRAYER : Civil Revision Petition has filed under Section 227 of the Constitution of India against the order dated 03.01.2017 made in I.A.No. 319 of 2015 in O.S.No.105 of 2010 by the II Additional District Judge, Puducherry.
For Petitioner : Mr.R.Thiagarajan
O R D E R
This Civil Revision Petition is directed against the order
dated 03.01.2017 passed in I.A.No.319 of 2015 in O.S.No.105 of 2010 by the learned II Additional District Judge, Puducherry.
2.The suit is filed for partition. Based on a joint
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compromise memo, the judgment and decree came to be passed on 25.06.2014. According to joint compromise memo, the respondents/ plaintiffs are entitled to 1/3rd of the suit on the western side and the petitioner / defendant is entitled to 2/3 of the suit property on the Eastern side. However, an intelocutory application in I.A No. 319 of 2015 came to be filed by the respondents / plaintiffs with a prayer to pass final decree based on the preliminary decree dated. 25.06.2014. The petitioner/defendant had contested the suit that the 2/3rd share allotted to him was already measured by a Surveyor and he is in exclusive possession and enjoyment of the same. However, the Trial Court, considering that the delivery of possession of 1/3rd share has not been properly handed over to the respondents/plaintiffs, appointed an Advocate Commissioner to measure the property with the help of a competent Surveyor and to allot 1/3rd share on the Western Side of the property to the respondents/plaintiffs and 2/3rd share to the petitioner/defendant. Challenging the order passed by the Court below in I.A.No.319 of 2015, the petitioner/defendant is before this Court.
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property shall be completed by passing a final decree. Even though the joint compromise memo filed by the parties states that 1/3rd share on the Western side beyonds to the respondents/plaintiffs and 2/3rd share on the Eastern Side allotted to the petitioner/defendant, the same has not been done with the aid of an Advocate Commissioner and Surveyor. For completing this legal requirement, the Advocate Commissioner is appointed and hence, this Court finds no discrepancy or illegality in the order appointing the Advocate Commissioner, to measure the property with the aid of the Competent Surveyor.
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09.08.2017
Index : Yes/No
Internet : Yes/No
bsm/tk
To
The II Additional District Judge,
Puducherry.
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M.GOVINDARAJ, J. bsm/tk
CRP (NPD) NO.2285 of 2017
09.08.2017
2 issues framed by the court
Whether the appointment of an Advocate Commissioner to execute the final decree in a partition suit based on a compromise memo is legal despite the memo specifying exact shares.
Whether the High Court should direct the learned court to attempt mediation before passing the final decree between siblings.
1 provisions across 1 enactments
Palaniraja
Sochammal
Isvary
Tamilselvy @ Selvy
M. Govindaraj
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
