VARATHARAJULU REDDIAR Vs. VENKATAKRISHNA REDDIAR AND ORS.

JUDGEMENT

(1.) THIS revision arises out of proceedings in a suit Original Suit No. 78 of 1955, Subordinate Judge's Court, Cuddalore, for partition of joint family properties, the plaintiff being the petitioner herein. On the 7th of August, 1959. a compromise decree was passed in the suit. It purported to be final decree. Under Clause (1) of the decree, besides the portion of a house marked in the plan attached to the compromise, the lands specified in schedule -A to the compromise were allotted absolutely to the plaintiff for his share and interest in the joint family properties. Under Clause (3) the marked portion of premises in the plan showing the old terraced house, site, etc., and the B Schedule lands with wells, etc., were allotted absolutely to defendants 1 to 3 for their share and interest in the joint family properties. There are provisions in the compromise regarding the crops on the lands, trees, engines, jewels, life -stock, etc. It is needless to refer to the details of these terms which are all embodied in the decree. There is a provision in the compromise that the claims of the respective parties have been settled by the compromise and that the properties to the plaintiff must be delivered within one month from the date of the compromise by defendants 1 to 3. Similarly within the same period the properties allotted to defendants 1 to 3 must be delivered to them by the plaintiff. It is further provided that if not so delivered, both the parties might treat the compromise itself as the final decree and apply for execution and obtain delivery through Court.

(2.) THE application, the order in which has given rise to the revision was made by defendants 1 to 3 praying for the appointment of a commissioner to divide the properties according to the decree, dated 7th August, 1959, treating it as a preliminary decree and praying for a final decree. The plaintiff and defendants 4 to 9 raised objections to the maintainability of the application inter alia on the ground that the decree, dated 7th August, 1959, was itself a final decree and that there has been a final division and allotment of the properties. It was stated in the objections filed, that the compromise clearly specified the properties to be taken by the respective parties and that, in the circumstances, the application for appointment of a commissioner for division of the properties afresh and for a final decree was not maintainable. A plea was also raised that the applicants had applied to the executing Court for delivery of possession impliedly taking the stand that there has been a final allotment and a final decree and they were, therefore, precluded from claiming a fresh final decree.

(3.) BUT it has become necessary to examine the matter in view of certain special features of the case which learned Counsel for the petitioner puts forward. The respondents, the applicants before the lower Court are unrepresented before me, but learned Counsel for the petitioner has taken me through the entire record. Learned Counsel does not dispute the existence in the compromise decree of allotments not capable of identification by reference to the record only as referred to by the learned Subordinate Judge. Learned Counsel is, therefore, hard put to contend that with reference to these items there is a final decree. The decree may be final in other respects, while being preliminary in respect of these items. No doubt, the compromise decree proceeds as if it is a final decree but whether a decree is final or preliminary or partly preliminary and partly final has to be determined only by reference to the decree itself and not by the description given to the decree by the parties.