Uppalapati Subrahmanyam Raju Vs. Uppalapati Sanyasi Satya Venkata Appala Raju and ors. - Court Judgment

Excerpt:
civil - passing of final decree - order 20 rule 18 (2) of code of civil procedure, 1908 - petition filed against non issuance of stay order for passing final decree in partition suit - respondents share not specified in preliminary decree passed - final decree can be passed only when respondents share specified in preliminary decree - before applying for final decree respondents liable to apply for modification in preliminary decree regarding their share - passing of final decree stayed. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of.....orderp.s. narayana, j. 1. the revision petitioner aggrieved by the order made by the learned senior civil judge, vizianagaram dated 18-7-2003 in f.d.i.a. no. 572 of 2002 in o.s. no. 17 of 1997, had preferred the present civil revision petition under article 227 of the constitution of india.2. the facts in brief are as hereunder:3. the revision petitioner as plaintiff filed a suit in o.s. no. 17 of 1997 on the file of the senior civil judge, vizianagaram for the relief of partition and separate possession of his 1/3rd share praying for the division of properties into three equal shares by metes and bounds. the learned senior civil judge, vizianagaram had decreed the suit on 26.4.2002. the revision petitioner, as plaintiff aggrieved by the fact that the relief of mesne profits had not been.....

Judgment:
ORDER

P.S. Narayana, J.

1. The revision petitioner aggrieved by the order made by the learned Senior Civil Judge, Vizianagaram dated 18-7-2003 in F.D.I.A. No. 572 of 2002 in O.S. No. 17 of 1997, had preferred the present civil revision petition under Article 227 of the Constitution of India.

2. The facts in brief are as hereunder:

3. The revision petitioner as plaintiff filed a suit in O.S. No. 17 of 1997 on the file of the Senior Civil Judge, Vizianagaram for the relief of partition and separate possession of his 1/3rd share praying for the division of properties into three equal shares by metes and bounds. The learned Senior Civil Judge, Vizianagaram had decreed the suit on 26.4.2002. The revision petitioner, as plaintiff aggrieved by the fact that the relief of mesne profits had not been granted, preferred A.S. No. 1991 of 2002 on the file of this Court and the same is pending disposal. In the said appeal, in C.M.P. No. 20657 of 2002, initially interim stay of passing of final decree was granted and subsequent thereto the same was vacated, The respondents herein-defendants moved an application in F.D.I.A. No. 572 of 2002 in O.S. No. 17 of 1997 under Order 20 Rule 18 of the Civil Procedure Code (hereinafter in short referred to as 'the Code') for passing of final decree in terms of preliminary decree and to partition the plaint schedule properties into three equal shares and put the defendants into two equal shares and the plaintiff in the third share. In view of the orders made by this Court in C.M.P. No. 20657 of 2002, dated 11.12.2002 the learned Senior Civil Judge, Vizianagaram had appointed Sri Ch. V.J.A. Prasad as Commissioner to divide the plaint schedule properties as per the terms of the preliminary decree and to file his report by 20-8-2003. The said order is questioned by the petitioner/plaintiff in the present civil revision petition.

4. Sri Subramanyam Narsu, the learned Counsel representing the petitioner/plaintiff made the following submissions:

5. The learned Counsel had drawn my attention to the language of Order 20 Rule 18(2) of the Code and submitted that a preliminary decree should declare the rights of several parties interested in the property. Unless a preliminary decree declares the rights of the defendants also, the defendants cannot maintain an application for passing of final decree. The learned Counsel also had taken me through the respective pleadings of the parties. The stand taken by the defendants is that there was prior partition. The learned Counsel in all fairness had submitted that the revision petitioner-plaintiff no doubt had preferred an appeal only in relation to the non-granting of mesne profits and this is a matter to be decided in the said appeal. The Counsel also would maintain that vacating the stay by this Court stands on different footing and now the question to be decided is, in the absence of declaration of the rights of the defendants in the preliminary decree, can such parties be permitted to maintain an application for the passing of the final decree. The learned Counsel submitted that the answer to the said question should be negatived especially in the light of the clear language of Order 20 Rule 18(2) of the Code and also a catena of decisions dealing with this question.

6. Per contra Sri Venugopal, the learned Counsel representing the respondents in the civil revision petition-defendants in the suit, submitted that in the suit O.S. No. 17 of 1997, as per the prayer, the decree was granted and there is no prayer praying for the relief of mesne profits. The learned Counsel also pointed out that in the appeal an application for grant of stay of passing of final decree was prayed for and initially interim stay was granted and subsequent thereto the same was vacated. Virtually, the petitioner/plaintiff is making an attempt to circumvent the said order made in the aforesaid application pending appeal before this Court. The Counsel also would maintain that it is not the concern of the petitioner/plaintiff as far as right of the defendants inter se may be concerned. The said rights will be worked out since absolutely there is no conflict of interest in between the defendants inter se, inasmuch as if any defendant also will stand in the position of the plaintiff in the partition action, this application for passing of the final decree by the respondents/defendants is definitely maintainable and there is no need to get the decree suitably modified or to get the judgment reviewed as the case may be.

7. Heard both the Counsel and perused the material available on record.

8. The question raised in the civil revision petition is no doubt short and simple and it is also no doubt true that the question is more technical in nature. It is also true that here is a party who is opposing the passing of final decree having obtained a preliminary decree by instituting a suit. The other factual details may not be necessary for the disposal of the present civil revision petition. In O.S. No. 17 of 1997 on the file of the Senior Civil Judge, Vizianagaram, a preliminary decree passed reads as hereunder:

'that it is hereby directed that the properties described in the schedule be partitioned into three equal shares by metes and bounds and put the plaintiff in separate possession of one such share after evicting the defendants therefrom'

9. The impugned order in the present civil revision petition reads as hereunder:

'This is a petition filed under Order 20 Rule 18 of C.P.C. by the petitioners-defendants. The petitioners-defendants praying the Court to pass a final decree in terms of the preliminary decree dated 26-4-2002 by appointing an advocate for partitioning the plaint schedule properties into three equal shares and to put the defendants in two equal such shares and the plaintiff in the third share for the reasons stated in the affidavit.

Perused the orders of the Honourable High Court of A.P., dated 11-12-2002 in C.M.P.No. 20657 of 2002, the Honourable High Court of A.P., in the said order observed that there is no need to say further proceedings as to the division of the properties as per the decree passed by the Court below. Therefore, Advocate Sri Ch. V.J.A. Prasad is appointed as Commissioner to divide the schedule properties as per the terms of the Preliminary Decree and should file his report by 20-8-2003. His fee is fixed at Rs. 1,000/- payable by the petitioner, directly.'

10. It is not in controversy that the defendants had filed this application for passing of the final decree and for the reasons best known, the plaintiff is not interested to have the final decree in pursuance of preliminary decree at this stage. It is also not in controversy that in C.M.P.No. 2065 of 2002 in A.S. No. 1991 of 2002 on the file of this Court, initially interim stay of passing of final decree was granted and subsequent thereto the same was vacated. At any rate in the present civil revision petition the petitioner/plaintiff is raising a different question. Order 20 Rule 18 of the Code deals with 'Decree in suit for partition of property or separate possession of a share therein' Sub-rule (2) reads as hereunder:

'(2) if and insofar as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties, interested in the property and giving such further directions as may be required.'

11. The words 'passing a preliminary decree declaring the rights of several parties interested in the property' assume some importance in deciding the question in controversy. It is no doubt true that the relief as prayed for had been granted. But, however while drafting the decree specific declaration of the rights relating to the defendants had not been incorporated. It is needless to say that the parties whoever it may be aggrieved of such omission in the decree are definitely entitled to get the same rectified. Now an objection is taken that unless and until the same is done in one of the modes available to all parties, known to law, till then a final decree application at the instance of the defendants cannot be moved. In Rahmat Bee v. Maqbool Banu, 1989 (2) APLJ 220, it was held by the Division Bench of this Court that:

'Order 20 Rule 18 enables the Court which passes the preliminary decree to appoint a Commissioner to make the partition according to the rights as declared in such decree. Where the rights of the parties are declared in the preliminary decree a Commissioner can be appointed to partition the properties as per the rights declared in the decree. In the instant case, the preliminary decree in no unmistaken terms specifies the rights of the plaintiff as well as each of the defendants. No doubt the preliminary decree does not say that the defendant should be put in possession of their shares, but that in our opinion does not make any difference. When once the shares are specified in the preliminary decree, it is open to the defendants to have a Commissioner appointed for allotment and separate possession of the properties as per the preliminary decree. In such a case, it is not necessary to get the preliminary decree modified. It is true that any number of final decrees can be passed. But in this case, it is not necessary as the rights of each of the parties have been specified in the preliminary decree.'

12. No doubt the Division Bench was not inclined to accept the view of learned Single Judge expressed in K. Rangayya Naidu v. K. Venkataswamy Naidu, 1986 (1) APLJ 272, wherein it was held that in the absence of a specific direction in the preliminary decree that the shares of defendants 1 and 2 shall also be separated, the petition is not maintainable till the decree is modified. However it is made clear that a declaration relating to the rights of the defendants is definitely essential. In S.V. Muthu v. Veerammal, 1981 (1) MLJ 502, it was held that if the preliminary decree already passed does not contain any declaration as to the rights of the defendants, their application for partition or separation of their share shall not be maintainable till they have the preliminary decree suitably modified, but when once the preliminary decree contains a declaration as to the defendants' share, they can, even after the passing of the final decree, take steps for actual separation of their share.

13. Reliance was also placed on Bittan Devi v. Rudra Sen, AIR 1966 All 610, Sarbeswar v. Bibhabasu, : AIR1977Cal288 , and Lachmi Narayan v. Balmakund, AIR 1924 PC 198.

14. It is clear that from a careful reading of the preliminary decree there is a specific direction relating to the share of the plaintiff, but a specific declaration relating to the rights of the defendants had been omitted and unless and until the same is incorporated by modifying the same in the light of the clear opinion expressed in different decisions referred to supra and in the light of the clear language employed in Order 20 Rule 18(2) of the Code, the respondents-defendants cannot move an application for the passing of the final decree. It is needless to observe that respondents/defendants are at liberty to take the appropriate steps in this regard, if they are so advised.

15. In view of the findings recorded above, the impugned order cannot be sustained and accordingly the order made in FDIA No. 572 of 2003 in OS No. 17 of 1997 on the file of the learned Senior Civil Judge, Vizianagaram is hereby set aside. The civil revision petition is allowed. No costs.