decree was ex parte and no contest was raised against the Commissioner’s report, it is no ground to disallow the objections by the defendant with regard to equities and valuation of the property and allotment of the shares. Therefore, the decree of the court below suffers from infirmity and is liable to be set aside. the Appeal is allowed and the matter is remanded to the lower court for disposal afresh according to law. The court below is directed to give an opportunity to both parties for raising their objections with regard to Commissioner’s Report and keeping in view the valuation and the equities, pass necessary orders within three (3) months from the date of receipt of copy of this judgment.

THE HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA

AND

THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO

C.C.C.A.NO.4 OF 2012

JUDGMENT(Per AM,J)

        The appellant/2^nd defendant has impugned the order dated      22-11-2011 passed by the X Additional Chief Judge, (Fast Track Court), City Civil Court, Hyderabad in I.A.No.1036 of 2010 in O.S.No.202 of 2008 whereby and whereunder a final decree was passed in terms of the report of the Advocate Commissioner.

02.    The brief facts of the case are that the plaintiff/respondent No.1 herein, viz., Prahlad Singh filed an application for passing of the final decree, as contemplated under Order XX Rule 18 CPC, pursuant to the preliminary decree passed on 24-07-2010. It was contended by the plaintiff that the suit schedule property be divided by metes and bounds and the possession be delivered to the respective parties.

03.    In pursuance to the application filed by the plaintiff/respondent No.1, an Advocate-Commissioner was appointed in I.A.No.1035 of 2010 and the Advocate-Commissioner after taking assistance of a private Surveyor has submitted his report.

04.    The learned Judge after going through the entire report held that each of the parties are already in possession of their respective shares and they be allotted the shares under their possession.

05.    The learned counsel for the appellant submits that neither any objections were called for by the court below nor the valuation has been taken into consideration before allocating specific portions of the suit schedule properties. The order of the lower court shows as if the Commissioner’s report disclosed that the parties are in possession of their respective shares, which is not reflected in the report of the Commissioner. More over, one of the parties have filed objections and they were not considered. Therefore, in view of the above circumstances, the court below should have considered the equities and also the objections raised by the defendants.

06.    Though the counsel for the plaintiff/respondent No.1 represents that the decree was ex parte and no contest was raised against the Commissioner’s report, it is no ground to disallow the objections by the defendant with regard to equities and valuation of the property and allotment of the shares. Therefore, the decree of the court below suffers from infirmity and is liable to be set aside.

Accordingly, the Appeal is allowed and the matter is remanded to the lower court for disposal afresh according to law. The court below is directed to give an opportunity to both parties for raising their objections with regard to Commissioner’s Report and keeping in view the valuation and the equities, pass necessary orders within three (3) months from the date of receipt of copy of this judgment.               Registry is directed to communicate the copy of this judgment to the lower court by 25-07-2007. In the circumstances, there shall be no order as to costs.

_____________________

ASHUTOSH MOHUNTA,J

17^TH JULY,2012

TSNR

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N.R.L.NAGESWARA RAO,J