L. Narasimha Reddy, J.
1. The petitioner challenges the order dated 22-9-2005 passed by the Court of Junior Civil Judge, Kodad.
2. Petitioner filed O.S. No. 260 of 2003 against the 5th respondent herein, for the relief of partition of the suit schedule properties into two equal parts and allotment of a share to her. A preliminary decree was passed on 12-2-2004, Thereafter, the petitioner filed I.A. No. 244 of 2004 for final decree. The trial Court appointed an Advocate Commissioner, and he, in turn, submitted a report, and the parties did not file any objections to it. The trial Court passed a final decree on 6-10-2004, in terms of the report of the Commissioner.
3. Respondents 1 to 4 herein filed an application before the trial Court, for impleading them as defendants 2 to 5, in the suit. They claimed interest in the suit schedule property, and intended to oppose the proceedings. Through the order under revision-, the trial Court allowed the I.A. Hence, this C.R.P.
4. Sri Brahmaiah Chowdary, learned Counsel for the petitioner submits that once the final decree was passed in the suit, it was not open to the trial Court to implead respondents 1 to 4 herein, as defendants 2 to 5. He contends that for all practical purposes, the Court had become functus officio with the passing of final decree, and the order passed by the trial Court cannot be sustained in law.
5. Sri K. Narasimha Chary, learned Counsel for the respondents 1 to 4, on the other hand, submits that his clients filed the I.A., much before the final decree was passed. He contends that the docket order passed by the trial Court on 6-10-2004 in I.A. No. 244 of 2004 cannot be said to be a final decree, and the same was taken note of, by the trial Court, when it passed the order under revision. He submits that the possession of the property was not yet delivered in terms of the so called final decree, and till such a time, it is competent for the trial Court to implead the interested persons, as parties to the suit.
6. The facts have already been stated, briefly. There is no dispute as to the stages, through which, the suit passed. It is true that respondents 1 to 4 herein filed I.A. No. 618 of 2004, under Order 1 Rule 10 C.P.C., to get themselves impleaded as defendants 2 to 5 in the suit, at a time when the final decree proceedings were pending. For one reason or the other, the application was not taken up, before 6-10-2004, on which day, the trial Court closed I.A. No. 244 of 2004, which was filed for passing a final decree.
7. It is settled principle of law that, a suit for partition shall be treated as pending before a Court, till the final decree is passed. In the instant case, the preliminary decree was passed on 12-2-2004, and the petitioner filed LA. No. 244 of 2004, for final decree. Commissioner was appointed and a report was submitted by him, dividing the property to equal parts, and allotting one part to the petitioner, and the other part to the 5th respondent. No objections were received from the petitioner, or the 5th respondent. Therefore, the trial Court passed the following order in I.A. No. 244 of 2004 :
Commissioner report filed. No objection reported. I.A. closed.
8. Though LA. No. 618 of 2004 was pending before the trial Court by 6-10-2004, no orders were passed therein by that date, for one reason or the other. At a later stage, the trial Court took up this application and ordered it, by taking the view that the final decree cannot be said to have been passed, unless the Court has specifically allotted the shares of each party. Learned Counsel for the respondents 1 to 4 submits that the final decree cannot be said to have been passed, unless the parties to the suit have been put in possession of their respective shares.
9. For examining these aspects, the scope of preliminary and final decree passed in a suit for partition needs to be noted. A suit for partition falls into the category of proceedings, in which a preliminary decree and thereafter, a final decree are to be passed. There may be exceptional cases, where the suit for partition can be disposed of, through a single decree, if there does not exist any necessity for undertaking the division of the properties by metes and bounds, and if there is no controversy between the parties, as to the allotment of items to individual sharers. But, such cases are very rare.
10. The adjudication stricto sensu, by a Court, in a suit for partition, covers two important aspects, viz., ascertainment of the items of properties, available for partition, and determination of shares of the parties. It is around these two important aspects, that other subsidiary questions revolve. Once the Court is able to record its findings on these two aspects, a preliminary decree comes to be passed, as provided for under Rule 18(1) of Order 20 C.P.C. This is to be followed by the final decree proceedings.
11. In the final decree proceedings, an exercise would be undertaken to divide the available properties and to allot the respective shares to the parties, in terms of the preliminary decree. Depending upon the nature of properties and existence of agreement, or lack of it, among the parties, the Court is required to examine the matter further, which would be mostly ministerial, than adjudicatory, in nature. The final decree proceedings come to an end, with the division of properties and allotment of shares. If the final decree is to result in delivery of possession of property, by one party to another, and there exists any non-compliance with the final decree, the aggrieved party has to initiate execution proceedings. It is not at all in the contemplation of the final decree proceedings, to induct the parties into the possession of their respective shares. That is to be relegated to the stage of execution. Therefore, the contention of the learned Counsel for the respondents 1 to 4, that till the possession of the respective shares are delivered to the parties, a suit for partition can be said to be pending; cannot be accepted.
12. The trial Court committed an error in proceeding on the basis that the suit was pending before it, since the petitioner and the 5th respondent were not put in possession, of their respective parts, indicated in the report of the Commissioner.
13. Learned Counsel for the respondents 1 to 4 submits that the order passed in LA. No. 244 of 2004 cannot be said to be a final decree, since no discussion was undertaken, nor it was observed that a final decree is passed. The necessity to undertake discussion would have arisen, if there existed any objections, on behalf of the petitioner or the 5th respondent. Further, while passing a final decree, the Court is not required to use the expressions, such as 'allowed, dismissed', etc., since the process of adjudication, in the normal parlance, does not take place therein, particularly, where no objections are raised by the parties, to the report of Commissioner.
14. For the foregoing reasons, the order under revision cannot be sustained. The C.R.P. is accordingly allowed, and the order in LA. No. 618 of 2004 is set aside. It is, however, made clear that it shall be open to the respondents 1 to 4 herein, either to file an appeal by obtaining leave of the Court, or to file a suit for declaration, as regards the binding nature of the decree in O.S. No. 260 of 2003, or to initiate such proceedings as are open to them in law. The time spent in the instant proceedings shall be excluded, while calculating the limitation. There shall be no order as to costs.