MURUGAN Vs. CHIDAMBARAM PILLAI

JUDGEMENT

(1.) The plaintiff in O.S. No.14 of 1953, on the file of the District Munsif, Ambasamudram, is the appellant in this Second Appeal. Defendants 1, 4, 9 and 10 in the suit are the respondents in this Second Appeal. In view of the limited scope of the controversy that requires resolution in the Second Appeal, there is no need to traverse upon the detailed facts of the case. Suffice it to state, the suit is one for partition and the preliminary decree; the subject matter of final decree application; is one passed by the District Court, Tirunelveli in A.S. No. 166 of 1954 on 22-11-1954, and that has been confirmed by this Court in S.A. No. 210 of 1955 on 19-9-1957. When the plaintiff took out I.A. No. 749 of 1977 to pass a final decree for partition in terms of the preliminary decree, a question of limitation was raised by the defendants and that has been countenanced by the two Courts below. Thus faced with an order of dismissal of the final decree application, the plaintiff has come before this Court by way of the present Second Appeal. At the time of the admission of the Second Appeal, this Court deemed it fit to formulate the following substantial question of law for consideration :

(2.) The defendants wanted to say and before me, they do say that as per clause (ii)(b) of the preliminary decree ultimately passed "the plaintiff should pay the ninth defendant a sum of Rs. 5500 /- as a condition precedent to get possession of one-half share of the properties in the plaint schedule", and this clause must be construed only as a final decree, and admittedly the condition precedent regarding payment of Rs. 5500 /- was not fulfilled before filing the present application, which must be treated as an application for execution, and the same has got to be dismissed as barred by limitation. This stand of the defendants has been, in substance, countenanced by the two Courts below, though there is a difference in their reasonings. The propriety of the view of the two Courts below is being questioned before me in this Second Appeal by Mr. M. Balachander, learned Counsel for the plaintiff. Learned Counsel for the plaintiff would say that clause (ii)(b) of the preliminary decree, ultimately passed should not be viewed dissociated from the nature of the lis, which is one for partition and the other clauses in the preliminary decree, and if so construed there could be only insistence for payment of the sum of Rs. 5500/- before the plaintiff asks for and gets possession of his one-half share, which could happen only after a final decree is passed effecting division by metes and bounds; and then if there is a failure on the part of the plaintiff to comply with the condition regarding payment as per Cl. (ii)(b) of the preliminary decree, he could not get possession of his half share. As against this, Mr. M. Chinnachamy, learned Counsel appearing for the ninth defendant, supported by Mr. S.S Sundar, learned Counsel appearing for the tenth defendant, says that clause (ii)(b) of the preliminary decree ultimately passed must be construed only as a final decree and an executable one and if so construed, there is a time limit for execution and that time limit having passed, the present application must be thrown out. Learned Counsel for defendants 9 and 10 placed reliance on a pronouncement of a Bench of the High Court of Allahabad in Lalta Singh v. Bhagwati Prasad Singh, AIR 1957 All 708.

(3.) Clause (ii)(b) of the preliminary decree ultimately passed is unambiguous in its terms. It only speaks about the payment of Rs. 5,500/- by the plaintiff to the ninth defendant as a condition precedent for the plaintiff getting possession of his one-half share in the properties in the plaint schedule. That event, namely, the plaintiff getting into possession of his one-half share shall not and cannot happen, unless his one-half share is divided by metes and bounds. Division by metes and bounds could be done only in the final decree application. Admittedly there is no division by metes and bounds. It is only towards that end, the present application has been taken out. After division by metes and bounds takes place and a final decree is passed; the plaintiff cannot get possession of his one-half share unless and until he pays the sum of Rs. 5,500/- to the ninth defendant. But, the preliminary decree ultimately passed as such has got to be effectuated by the passing of a final decree thereon. In this connection, the Court must take note of clause (ii) of the preliminary decree, which says,