KURIAN GEORGE KATHANAR Vs. K.N. RAGHAVAN

JUDGEMENT

(1.) THIS is an appeal by the 10th defendant.The suit was for declaration of title and recovery of the plaint property.The trial court passed a decree in the following terms:" ...[VERNACULAR TEXT OMITTED]...

(2.) THERE was an appeal,and a further second appeal to the High Court.Both appeals were dismissed.The High Court decree is dated 28th January 1954.Several applications styled execution petitions were filed by the plaintiff,the penultimate one having been dismissed on 22nd January 1960.Thereafter,the application dated 25th January 1966 was moved which was also termed as an execution petition.The prayer therein was for the ascertainment of the property to be delivered over to the plaintiff and for delivery of the property with mesne profits.Objection was taken by the appellant,the 10th defendant,that the application is barred by limitation.This objection was upheld by the first court.In appeal,the appellate court took the view that the applications made though styled as execution petitions,must be understood as appli­cations made for the passing of a final decree,the decree passed in the case being incomplete and in that view,held that there was no bar of limitation.It therefore allowed the appeal and directed that the application dated 25th January 1966 be dealt with in the trial court and a final decree passed.It is from this order that this appeal is taken and the question is whether the view taken by the appellate court can be sustained.

(3.) A number of decisions have been referred to in the course of arguments.It is now well -settled and as far as suits for partition are concerned when a court determines the rights of the parties to the shares and does not decide which items after division by metes and bounds should be delivered over to the plaintiff the decree that is passed in the case is only a preliminary decree and any reminder to the court to pass the final decree by applications are not appli­cations in execution but applications to proceed with the trial for the passing of the final decree.We need only refer to the decision of the Travancore -Cochin High Court in Madhava Menon v. Esthapanose and another, A.I.R.1952 Travancore -Cochin 428.This decision has referred to three Full Bench decisions of the Cochin High Court;in Anantharama Iyer v .Ramanatha Iyer, 15 Cochin,L.R.237, Krishna Menon v. Narayana Menon ,20 Cochin L.R.397 and Ranga Naicken v. Kesava Naicken, 37 Cochin L.R.275: