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Author Topic: partition suit - question  (Read 532 times)

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Offline ameya salatry

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partition suit - question
« on: February 06, 2018, 04:54:46 AM »
sir,
i have a civil partition suit case pending in thane that is in trial and am on plaintiff side and we are a hindu family. . just need your clarification on the below -

1. can the defendant go for a appeal on preliminary decree or does she have to wail until final decree  ( we have prayed for preliminary decree,appoint of advocate commissioner and final decree in the suit)
2. if there is NO stay acquired on the preliminary decree, can we go ahead and request for appointment of advocate commissioner
3. how long does appointment of advocate commissioner and submit report usually takes ?
4. the defendant(my sister) is in current possession of the property and travel abroad frequently . what if she avoid the court commissioner from court and always have the house locked. will court have the right to inspect and survey even at her absence or any additional petition to be filed from my side?

Offline kalaskarkk

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Re: partition suit - question
« Reply #1 on: February 13, 2018, 12:59:28 AM »
Dear Sir,
 
My answers are as follows:

1. can the defendant go for a appeal on preliminary decree or does she have to wail until final decree  ( we have prayed for preliminary decree,appoint of advocate commissioner and final decree in the suit)
Ans: Soon after pronouncement of judgment and after decree is passed the defendant have right to approach the High Court and get stay order and thus it will be stayed and you have to wait till disposal of appeal.

2. if there is NO stay acquired on the preliminary decree, can we go ahead and request for appointment of advocate commissioner
Ans: Yes, you can pray for drawing of final decree as per section 54 of CPC

Section 54. Partition of estate or separation of shares.- 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 shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.

3. how long does appointment of advocate commissioner and submit report usually takes ?
Ans: It may take 2 to 3 months.

4. the defendant(my sister) is in current possession of the property and travel abroad frequently . what if she avoid the court commissioner from court and always have the house locked. will court have the right to inspect and survey even at her absence or any additional petition to be filed from my side?
Ans: You have to issue paper publication if acceptable to the Court otherwise you have to wait return of your sister or even get orders for break opening of house lock, under exceptional cases.
Regards:

Kishan Dutt Kalaskar
Retd Judge and Advocate
No.74, 1st Floor, “Disley”  House,
Malleswaram, Bengaluru-560003.
Mob: 9686971935, 080-23461189
kalaskarnetra@gmail.com
Call me for clarification

Offline learner9999

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Re: partition suit - question
« Reply #2 on: February 13, 2018, 10:14:47 PM »
sir,
does a mere  filing of appeal under sec 31 gives grant of automatic stay?
or does it have to be explicity given,
how easy is it to get stay order for judgement debtor/also in sole possession of the property to get stay order?
can the decree holder oppose such stay?if yes, how long will it take to get the stay vacated.i heard it can take upto 10 yrs for a appeal to be heard, will it be the same case for stay vacating as well?

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Re: partition suit - question
« Reply #2 on: February 13, 2018, 10:14:47 PM »

 

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