SAROJINI PRABHU Vs. PAPPIKUTTY ADIESIAR

JUDGEMENT

(1.) Petitioners are challenging the dismissal of the application filed by them for passing of a final decree in O.S. 9/67. A preliminary decree for partition of the plaint schedule property into 10 equal shares and for redemption of their 1/10 shares on payment of proportionate share of the mortgage amount covered by the registered mortgage deed was passed by the Sub Judge. It was challenged before District Court in A.S. 171/ 72. The appeal was partly allowed modifying the decree. It was challenged before this Court in S.A. 368/76. This Court set aside the modified decree passed by the appellate Court and restored the decree of the trial Court. On the death of the original plaintiff, his legal heirs filed I.A. 3139/95 for passing a final decree. An objection was raised with regard to the maintainability of the final decree contending that it is barred by time. The learned Sub Judge overruled the objection and appointed a Commissioner to value the improvements. It was challenged before this Court in C.R.P. 2318/99. On 14-6-2002, the revision was dismissed holding that the revision is not maintainable and the revision petitioners if aggrieved against the final decree are entitled to challenge the same. The Commissioner submitted the report. The respondents sought to raise a contention that the petition is barred by limitation. When it was not allowed to be raised, they approached this Court by filing CMP 5786/ 02 for an order clarifying that they are entitled to raise the question of limitation in the final decree. As per order dated 31-10-2002, that petition was disposed making it clear that respondents are entitled to raise all available contentions in the final decree. Respondents armed with that order, contended before Sub Court that they are entitled to raise the question of limitation once again and persuaded the Court to consider the objection regarding the limitation. As per order dated 31-1-2003, Court below dismissed the final decree application holding that it is barred by time petitioners in the final decree are challenging the said order in this revision filed under Section 115 of the Code of Civil Procedure.

(2.) A preliminary objection was raised by the respondents that the revision is not maintainable as by the impugned order, the final decree application was dismissed and so remedy of the petitioners is only to prefer a regular appeal and no revision is maintainable. Reliance was placed on the decision of the Apex Court in Shyam Sundar Sarma v. Pannalal Jaiswal and a decision of this Court in Janardhanan v. Chandramathy 1996 (2) KLT 545 : 1997 AIHC 640. It cannot be said that the impugned order is a final decree. Though pursuant to the preliminary decree application for passing a final decree was filed, as per the impugned order Court below dismissed the application holding that it is barred by time. It is not a final decree. In Janardhanan's case (supra) the maintainability of an appeal preferred against the final order passed in the final decree application without producing a certified copy of the final decree was raised. That was a case where though a final decree was passed directing the sharers to produce non-judicial stamp papers for engrossing the final decree, it was not produced and an appeal was filed challenging the final order without producing the certified copy of the final order. This Court held:

(3.) The facts are not identical. A preliminary decree for partition and redemption was passed. Though final decree application was filed, no judgment was passed in the final decree. The preliminary decree is not only for redemption but also for partition. It cannot be said that the impugned order amount to a decree as defined under subsection (2) of Section 2 of CPC. As per the impugned order, the final decree application was dismissed without passing any judgment even in respect of the preliminary decree providing partition. In such circumstance the order is revisable under Section 115 of CPC and revision petition is maintainable.