RAJAN V P Vs. SASEENDRAN

JUDGEMENT

(1.) The petitioner, who is the third defendant in a suit for partition filed an application under Order IXR. 13 of the Code of Civil Procedure to set aside the preliminary decree which was passed ex parte. There was a delay in filing the application for setting aside the ex parte decree. An application was filed to condone the delay. The Trial Court dismissed both the applications. The third defendant filed C.M.A. No. 141 of 2009 before the First Additional District Court, Thrissur against the order passed by the Trial Court. The appeal was dismissed by a one line order which reads as follows:

(2.) An aggrieved party is entitled to file an appeal against the preliminary decree for partition. Either he may not apply for stay of the final decree proceedings or the Appellate Court may refuse to stay the final decree proceedings. In either case, it is likely that a final decree would be passed. That does not mean that the appeal against the preliminary decree would become infructuous. What is to be decided in the preliminary decree is determination of the shares to which the parties are entitled to, whether the plaintiff is entitled to get a share and all other contentions which would determine the rights of parties in respect of the property sought to be partitioned. In the final decree proceedings, those questions cannot be raised and the court dealing with the final decree proceedings need only divide the properties by metes and bounds in tune with the preliminary decree. If the preliminary decree is reversed or modified in appeal, the final decree, if any, passed in the meanwhile, would become nullified to that extent. The Supreme Court in Sital Parshad & Anr. v. Kishori Lal, 1967 AIR(SC) 1236 held as follows: