Ramesh, J.:—
This revision petition by one of the defendants is directed against the order dated 23.01.2004 passed by the Trial Court in Final Decree Proceeding No. 5/2002. By the impugned order, the Trial Court has appointed the Assistant Director of Land Records as Court Commissioner under Section 54 of the Code of Civil Procedure (‘CPC’ for short) to effect partition in all the suit properties in terms of the preliminary decree passed in O.S No. 131/1990.
2. I have heard learned Counsel appearing for the parties and perused the impugned order. Learned Counsel for the petitioner submitted that the impugned order is contrary to Section 54 of CPC as amended in Karnataka and hence requires to be set aside.
3. The Trial Court by the impugned order has ordered for effecting partition in all the suit properties by metes and bounds through the Court Commissioner with a direction to handover 1/8th share to the plaintiff and thereafter to report to the Court along with his survey sketch and receipt evidencing handing over of possession to the plaintiff.
4. To examine the correctness of the contention that the impugned order is contrary to Section 54 of CPC, the amended provision requires to be noticed. It reads as follows:
“54. Partition of estate or separation of share — Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share of such an estate shall be made by the Court in accordance with the law if any for the time being in force relating to the partition or the separate possession of shares and if necessary on the report of a revenue officer, not below the rank of Tahsildar or such other person as the Court may appoint as Commissioner in that behalf”.
(Underlining is mine)
5. As could be seen from the above provision, effecting partition by the Court Commissioner, or revenue officer is not permissible. This is because of the change in law brought by Karnataka Act No. 36 of 1998 to Section 54 of CPC. In all cases to which the amended provision applies, the partition shall be made only by the Court and not by revenue officer or Court Commissioner. The Court, if necessary, can obtain a report from revenue officer or Court Commissioner to enable it to effect partition. It can effect partition on such a report.
6. In view of the above, the impugned order to the extent it has ordered partition through Court Commissioner cannot be sustained in law.
In the result, I make the following order:
(i) The impugned order to the extent it has ordered for partition through Court Commissioner is set aside. The Trial Court shall effect partition in accordance with Section 54 of CPC as amended in Karnataka.
(ii) The Trial Court shall dispose of the Final Decree Proceedings within three months from the date of receipt of a copy of this order as the suit is of the year 1990.
The revision petition stands disposed of in the above terms.
Comments