P.H.HONNAPPA Vs. JAYAMMA

JUDGEMENT

(1.) The only question that arises for consideration in this appeal is whether the first appellate Court could have remanded the matter back to the trial Court for reconsideration?

(2.) The appellants herein filed a suit for partition and separate possession of their legitimate shares in the suit schedule properties, by meets and bounds. However, even as the trial was being proceeded with a final decree proceedings arising out of an earlier partition suit in O.S.No.230/1989 was initiated by the preliminary decree holders. Being aggrieved, the appellants herein who were the plaintiffs in O.S.No.73/2010 filed an interlocutory application seeking stay of the final decree proceedings. When the said application was allowed and stay of the final decree proceedings was ordered, the same was challenged by respondent Nos.2, 3 and 4 before this Court in W.P.No.20508/2011. This Court by order dated 17.08.2011 took note of the contentions of the petitioners therein that the earlier suit was a collusive one and the female heirs had been left out and in the subsequent suit, the female heirs are seeking partition, therefore, this Court held that it was evident that in the earlier suit filed for partition between brother's wife and children, the female heirs were not made parties and now they have filed the suit. Therefore, this Court deemed it just and proper that the final decree proceedings and the present suit i.e., O.S.No.73/2010 have to be clubbed together heard and decided. It was therefore directed that the trial Court should dispose of the cases within six months from the date of receipt of the order.

(3.) Though the order was passed on 17.08.2011, the trial Court appears to have received a copy of the order passed in W.P.No.20508/2011 on 14.09.2011, as per the endorsement made in the order sheet. Nevertheless, the trial Court proceeded to pass the judgment and decree on 21.02.2012, without clubbing the final decree proceedings. Learned counsel for the appellants submits that none of the parties brought the order of this Court in W.P.No.20508/2011 to the notice of the trial Court. Therefore, the trial Court proceeded to pass the judgment and decree without clubbing the final decree proceedings. When the matter was taken up in appeal, the first appellate Court having noticed the order passed by this Court in W.P.No.20508/2011, held that it was clear from the judgment and decree passed by the trial Court that there was no compliance of the directions issued by this Court in W.P.No.20508/2011 and the trial Court had proceeded to pass the judgment and decree without clubbing the final decree proceedings. Therefore, the first appellate Court remanded the matter back to the trial Court to ensure compliance of the order passed in W.P.No.20508/2011 and reconsider the matter after clubbing the final decree proceedings.