GAVADU Vs. SURESH KALLAPPA MAKAVI

JUDGEMENT

(1.) THE petitioner, being aggrieved by the order dated 5th June, 2000 on the file of the Principal Civil Judge (Junior Division), Khanapur in f. D. P. No. 5 of 1995, has presented the instant civil revision petition.

(2.) THE petitioner herein had filed O. S. No. 63 of 1972 on the file of the principal Civil Judge, Belgaum for partition and separate possession. The said suit has been decreed holding that, the petitioner is entitled to 1/20th share of the schedule property. Being aggrieved by the judgment and decree passed by the Principal Civil Judge, Belgaum, the petitioner herein filed a Regular Appeal No. 18 of 1981 on the file of the Additional district Judge, Belgaum. The learned District Judge, Belgaum heard the Regular Appeal and confirmed the order passed by the Principal civil Judge, Belgaum in O. S. No. 63 of 1972, allowing the 6/20th share out of all the schedule properties. Further, it is the case of the petitioner that, the respondents 1 and 2 herein claim to be the purchasers from defendants 1 to 3. The first respondent herein viz. , Sri Suresh Kallappa makavi had filed F. D. P. No. 5 of 1995 on the file of the Principal Civil judge (Junior Division), Khanapur. The said final decree proceedings had come up for consideration before the Trial Court on 5th June, 2000. The defendant's Counsel prayed for time but the said request has been rejected and further, the Trial Court has observed that, the objections taken not filed. Draw final decree as per the "preliminary decree". Being aggrieved by the said order passed by the Trial Court, as stated supra, the petitioner felt necessitated to present the instant revision petition.

(3.) THE principal submission canvassed by the learned Counsel appearing for petitioner is that, when the petitioner has sought for time, the same has been rejected by observing that, the objection taken not filed. The Trial Court has straightaway directed to draw the final decree per the preliminary decree, without considering the request of the counsel for granting time, contrary to the well-settled principles of law laid down by the Apex Court as well as this Court. To substantiate her submission, she placed reliance on in the case of A. Manjundappa v sonnappa and Others, AIR 1965 Mys. 73. and pointed out that, as per the procedure envisaged under Order 20, Rule 18 (1) and Section 54 of the Code of Civil procedure, the Trial Court is required to provide for two matters in the preliminary decree, viz. , (i) it should embody a declaration of the rights of the several parties interested in the immovable property; and (ii) it should also embody a direction that in respect of property assessed to or any officer deputed by him shall effect the division in accordance with the provisions of Section 54. Therefore, she submitted that, the Trial court has passed the impugned order without following the well-settled law laid down by this Court and contrary to the mandatory provisions of the Civil Procedure Code referred above. The order passed by the Trial court is not sustainable and hence, it is liable to be set aside.