Ram Saroop v. Maya Devi & Ors.

Mr. Sanjay Mittal, Advocate for respondent Nos. 1 to 3. --- AJAY KUMAR MITTAL, J. In this revision petition filed under Article 227 of the Constitution of India, the prayer is for quashing the impugned order dated 29.1.2008 passed by the Additional Civil Judge (Senior Division), Kosli, District Rewari, whereby the second application moved by Maya Devi and others, the decree-holders, for preparation of a final decree pursuance of the preliminary decree dated 8.2.1988 has been held to be maintainable. The facts as appear from the record are that a suit for partition of the suit property filed by Maya Devi and C.R. No. 1147 of 2008 2 others was decreed on 8.2.1988 whereby a preliminary decree was passed by the trial court. The appeal preferred by the defendants was dismissed on 10.3.1995 by the first appellate court. It is also an undisputed fact that even the regular second appeal carried on behalf of the defendants was also dismissed by this Court on 21.11.1996. The decree holders had earlier moved an application for preparation of a final decree, but the same had been dismissed in default on

27.10.2003. The application filed by them for restoration of the above application which had been dismissed in default on 27.10.2003, was also dismissed on 28.2.2006 as time barred. It was thereafter the decree-holders moved second application for preparation of the final decree in pursuance of the preliminary decree dated 8.2.1988. On an objection having been raised by the judgment-debtors regarding maintainability of the said application, the trial court disposed of the said objection vide the impugned order dated 29.1.2008 holding that the same was maintainable. Hence, this revision petition by the judgment-debtors. I have heard learned counsel appearing for the parties and have gone through the record. Learned counsel appearing for the petitioner contended that the respondent-decree holders had filed an application for restoration of the first application for passing C.R. No. 1147 of 2008 3 of the final decree and the same having been dismissed in default, the second application for passing the final decree was not maintainable. Even otherwise, an application for restoration of the first application for passing the final decree was required to be filed within one month. According to the learned counsel, a vested right had come into being in favour of the petitioner and the same cannot be taken away by permitting the filing of the second application by the respondent-decree holders. Controverting the aforesaid submission, learned counsel appearing for the respondent-decree holders urged that dismissal of the earlier application in default without adjudication on merits does not operate as res judicata as the same is not the final decision of the court after hearing the parties and the second application for passing a final decree was rightly held to be maintainable by the trial court. The counsel supported his submission on the strength of the apex Court’s decision in Shankar Balwant Lokhande (Dead) by L.Rs versus Chanderkant Shankar Lokhande, A.I.R. 1995 S.C. 1211, two decisions of this Court in Baldev Singh and others versus Maghar Singh and another, 2005(2) RCR (Civil) 388; Yash Pal Sharma versus Ajit Singh and others, 2006(3) RCR (Civil) 614, and of Madras High Court in Murugan versus Chidambaram Pillai and others, A.I.R. 1991 Madras 307. C.R. No. 1147 of 2008 4 The cardinal issue falling for consideration in this revision petition is, whether second application for passing a final decree is maintainable where earlier application filed in that regard after passing of the preliminary decree had been dismissed in default and the application for restoration thereof had also been dismissed as time barred. A suit for partition of the properties by metes and bounds stands on different footing. The right of partition of the joint property is a continuing right which flows from joint-ness of the property, and it remains till the joint ownership continues. Suit continues to be pending even after passing of the preliminary decree till a final decree is passed. The preliminary decree is not executable unless the final decree is passed specifying the shares of each share- holder by metes and bounds and the same is inscribed on the stamp paper. Limitation begins to run for execution of the decree only after passing of the final decree. The provisions of Order 9 Rule 9 of the Code of Civil Procedure pertain to the bar regarding filing of second suit where the first suit had been dismissed in default. However, there is no such similar provision which bars filing of second application for passing a final decree in a suit for partition or for execution of the decree. By the passing of a preliminary decree determining the rights of the parties in a suit for partition, the suit does not come to an end till the C.R. No. 1147 of 2008 5 final decree is passed. There being no limitation prescribed in the statute, the application for passing a final decree can be filed at any time. Reference is now made to the case law relied upon by learned counsel for the respondent. In Shankar Balwant Lakhande’s case (supra), the Supreme Court was dealing with the issue regarding period of limitation for filing of an application for passing a final decree. The apex Court held that until the final decree determining the rights of the parties by metes and bounds is drawn up and inscribed on stamp paper supplied by the parties, there is no executable decree. The Supreme Court further held that until the rights in the final decree proceedings are worked out qua all and till a final decree in that behalf is made, there is no formal expression of the adjudication conclusively determining the rights of the parties. The issue before this Court in Baldev Singh and others’ (supra) was regarding limitation for filing an application for passing a final decree. It was held that until and unless the final decree is prepared, the suit is deemed to be pending before the trial court as the suit is culminated only on the passing of the final decree and, therefore, the question of the application being barred by time does not arise. Further, in Yash Pal Sharma’s case (supra), second execution application within the period of limitation for C.R. No. 1147 of 2008 6 execution of decree was held to be maintainable where the first application had been dismissed in default and the restoration of the first execution application had not been sought. Further, the Madras High Court in Murugan’s case (supra), while considering the analogous situation, as in the present case, has in para 4 of the judgment recorded as under: “4.xxx It is well settled that in a suit for partition, there is no limitation for filing a final decree application and any number of final decree applications could be filed until the suit is finally disposed of and by the mere passing of the preliminary decree, the suit is not disposed of. The application for passing of a final decree in a suit for partition is not an execution application.” In view of the above, the second application filed by the respondent for passing a final decree was rightly held to be maintainable and no fault can be found with the order impugned in this revision petition. Accordingly, finding no merit in the revision petition, the same is dismissed. July 14, 2009 *RKMALIK* (AJAY KUMAR MITTAL) JUDGE C.R. No. 1147 of 2008 7