- (1.) THIS Civil Revision Petition has been preferred against the order, dated 18.01.2007 passed in I.A.No.357 of 2006 in O.S.No.776 of 1987 on the file of the Additional Subordinate Judge, Salem.
(2.) IT is an admitted fact that the suit in O.S.No.776 of 1987 was filed by the respondents 1 and 2 herein as plaintiffs, seeking partition and separate possession. By the Judgment and Decree, dated 15.01.2001, preliminary decree for partition was passed by the court below. Aggrieved by which, no appeal has been preferred by the revision petitioners. Pursuant to the preliminary decree, final decree application was filed by the respondents 1 and 2 herein as plaintiffs, under Order 26 Rule 13 CPC for appointment of an Advocate Commissioner. The court below, as per the preliminary decree passed in the aforesaid suit, appointed Advocate Commissioner to effect partition of the property. Aggrieved by which, this Civil Revision Petition has been filed. Mr. P. Mathivanan, learned counsel appearing for the revision petitioner would contend that the decree was not drafted by court below, as per the Judgment. Learned counsel appearing for the revision petitioner drew the attention of this court to the Judgment of the court below, dated 15.10.2001 at paragraph number 11 of the Judgment. Mr. D. Shivakumaran, learned counsel appearing for the respondents 1 and 2 contended that the court below has admittedly drafted the decree, only as per the operative portion of the Judgment available at page number 15. According to the learned counsel for the respondents / plaintiffs, there is no error or infirmity in the decree.
(3.) ORDER 26 Rule 13 of the Code of Civil Procedure reads as follows "Where a preliminary decree for partition has been passed, the court may in any case not provided for under Section 54, issue a commission to such persons, as it thinks fit to make the partition or separation, according to the rights as declared in such decree." Here in the instant case, as per the Judgment and Decree, the court below has declared the right of the respondents 1 and 2 / plaintiffs for the allotment of their share in the property. Admittedly, the revision petitioners have not challenged the Judgment and Decree before appellate forum, hence, it reached its finality and further, there is no error or infirmity in the impugned order in appointing Advocate Commissioner, as per ORDER 26 Rule 13 CPC to effect division of the property, as pr the preliminary decree. This revision has been filed under Section 115 of the Code of Civil Procedure. As per Section 115 CPC, under the revisional jurisdiction, this court can interfere with the order passed by the court below, if there is no appeal lies thereto and if such subordinate Court appears to have exercised jurisdiction not vested in it by law, or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity.;