SURESH VYAS Vs. RAMCHANDRA VYAS

JUDGEMENT

(1.) HEARD.

(2.) THE applicant in this revision application challenging the order dated 10-10-2005 passed by Seventh Civil Judge, Class I, Gwalior, in Case No. 188-A/77 2003 E. D.

(3.) BRIEF facts of the case are that the non-applicant No. 1 filed a suit for partition against the applicant and non-applicant Nos. 2 to 4. The Trial Court vide judgment and decree dated 2-1-1981 passed a preliminary decree for partition in Civil Suit No. 188-A/77. On 3-12-2003, non-applicant No. 1 filed an application before the Trial Court for execution of preliminary decree. It is averred in the application that earlier an application was filed for preparation of final decree. The record of the Trial Court was misplaced and the said application was dismissed in 1997 on account of non-appearance of the non-applicant No. 1 and an application to restore the same was also filed but the court record has also been destroyed in the incident of fire. The non-applicant tiled its reply and opposed the application and prays for dismissal of the application on the ground that the same is barred by time under Article 136 of the Limitation Act, 1963. The applicant also raised an objection that execution of preliminary decree is not maintainable. It is further averred that in the year 1997, property in question had been divided by mates and bound between the parties in family settlement arrived in the year 1997 and the same had been acted upon and Late Shri Bhaskar Vyas and non-applicant No. 4 Purshotiam Vyas relinquished their shares in favour of the applicant. The Trial Court by impugned order rejected the objection of the applicant by holding that application is not barred by time and appointed Shri Naqvi as a Partition commissioner as per preliminary decree dated 2-1-1981.