SREEDEVI AMMA Vs. NANI AMMA

JUDGEMENT

(1.) The 2nd defendant in O. S. No. 868 of 1966, Munsiff's Court, Palghat, is the appellant herein. The plaintiffs in the suit are the respondents. This Second Appeal is preferred from the order of the court below rendered in I. A. No. 743 of 1979 dated 18-3-1982, which was confirmed by the Subordinate Judge, Palghat in A. S. No. 61 of 1981 by judgment dated 30-7-1984. The suit was one for partition. A preliminary decree was passed on 5-10-1967. Thereafter, the plaintiffs filed I. A. 2529 of 1967 for passing the final decree. A Commission was issued. The Commissioner filed a plan and report. But the application was dismissed for default. Thereafter, the plaintiffs filed I. A. No. 743 of 1979 under O.26 R.13 CPC. to pass a final decree. The Ist defendant was ex parte. The 2nd defendant challenged the maintainability of the second application for passing a final decree. This objection was not accepted by the Trial Court. Plaintiffs' application was allowed. In appeal, the learned Subordinate Judge concurred with the decision of the Trial Court. It was held that the application filed by the plaintiffs for passing the final decree is not barred by limitation. The learned Subordinate Judge also held that the grievance of the defendants that sufficient opportunity was not given to them to substantiate their case, is without any foundation. The 2nd defendant has come up in Second Appeal.

(2.) Mr. C. Chitambaresh, counsel for the appellant, contended that the present application for passing a final decree is barred, since the earlier application was dismissed for default more than three years ago. There is no substance in this contention. It fails to give effect to the nature and scope of a partition suit and the preliminary decree passed therein As stated in Law of Limitation and Prescription, U. N. Mitra, 9th Edition, Volume III (1979 Edn.) Page 2440:

(3.) In the light of the above statement of the law, the contention of the appellant's counsel that I. A. No. 743/79 filed by the plaintiffs for passing the final decree is barred by limitation, is without substance. The learned Subordinate Judge has adverted to this aspect of the matter in para 4 of his judgment. He held: