KAPILA BAI Vs. H SMADHAVA RAO

JUDGEMENT

(1.) This is a revision petition preferred by the petitioner-plaintiff against the order of the learned First Additional District Judge, Bangalore, dismissing her applications I. A. Nos. X and XI in O.S. 9 Of 1944-45.

(2.) The facts that have given rise to this revision petition are briefly as under:

(3.) The petitioner-plaintiff obtained a preliminary decree against the respondents in O. S. 9 of 1944-45 for partition & possession of her 1-3rd share in the schedule properties. This was on 31-8-46. She made an application I A. No. VIII on 25-3-48 under Section 54 and Order XX, Rule 18 of the Civil Procedure Code praying that a copy of the preliminary decree may be sent to the Deputy Commissioner, Kolar, for effecting the division of the lands and putting her in possession of her 1/ 3rd share. A warrant was accordingly issued for division of the properties by metes and bounds and the same was returned with a shara that the warrant was duly executed. Acting on this shara, the Court passed a final decree and the same was ordered to be drawn up and this was on 4-7-49. Subsequently, the petitioner filed I. A. Nos, X and XI alleging that the schedule properties were not divided, that she was not put in possession of her one-third share and that the shara on the warrant that, division had been effected and that the petitioner was put in possession of her one- third share was false. She also requested that the copy or the preliminary decree may be sent to the Deputy Commissioner for effecting a division by metes and bounds and for putting her in possession of her share. The learned Judge dismissed these applications holding that there was already a division of the properties, by metes and bounds, that the petitioner was put in possession of her share that a final decree has been passed, that there cannot be another division, that when once the Court passes a final decree it becomes functus officio, that it has no Jurisdiction to re-open the proceedings and that the remedy of the plaintiff was by another regular suit against the respondents. It is against this order that this revision petition is preferred.