PERUMAL VADYAR Vs. DEVI

JUDGEMENT

(1.) The point for consideration in this revision is whether a supplementary preliminary decree can be passed in a suit for partition.

(2.) First respondent filed a suit for partition as O. S.325/1975 before Munsiff's Court, Chittur for partition and separate possession of her share in plaint A, B and C schedule properties. The properties originally belonged to 2nd respondent and his brother Narayana Vadhyar. Petitioners and 1st respondent are the legal representatives of Narayana Vadhyar. His wife Annamma Amma, who was the 5th defendant in the suit, died subsequent to the order in I. A. 1572/1985 from which this revision arises. Petitioners and 1st respondent are her legal heirs. A preliminary decree was passed in that suit directing partition and separate possession of the share of plaintiff in the plaint schedule properties. The shares of the defendants were not determined, nor was any provision made in the decree for allotment, of their shares. During the pendency of the petition for final decree petitioners moved that court by means of I. A. 1572/1985 for allotting their shares separately. That petition was allowed originally. On appeal by 3rd respondent before District Court, Palghat the petition was remanded for fresh consideration. After remand the petition was dismissed by the Munsiff for the reason that the advocate for petitioner could not point out any provision giving jurisdiction to the Trial Court to pass an additional preliminary decree. That order was appealed against before District Court, Palghat. The appeal also was dismissed with the observation that revision petitioners were not entitled to ask for a second preliminary decree. That order is under challenge in this revision.

(3.) It is urged on behalf of petitioners that there is no bar in passing more than one preliminary decree in a partition suit whereas counsel for respondents would submit that the Code of Civil Procedure provides only for one preliminary decree and one final decree. O.20 R.18 empowers the court to pass a preliminary decree in a suit for partition of property or separate possession of a share therein. That rule as substituted in this State reads: