MOHAMMAD ALI Vs. BAKAR ALI

JUDGEMENT

(1.) THIS appeal at the instance of defendant is directed against the judgment and decree dated 1-4-2005 passed by 1st Additional District Judge, shajapur in regular Civil Appeal No. 21-A/1999 whereby the order dated 5-4-1999 passed by Civil Judge, Class-I, Sarangpur was affirmed. The brief facts are as under.

(2.) THE respondent No. 1 had filed a suit for partition of residential house. A preliminary decree was passed in favour of the plaintiff by the trial Judge on 9-5-1970. Against the said preliminary decree, the appellants preferred a First Appeal no. 31-A/1978 which was dismissed on 11-2-1980 by the Additional District judge, Shajapur. On 26-4-1988, the respondent moved an application under order XXXIV, Rule 4 of the Civil Procedure Code for passing a final decree in terms of preliminary decree and for delivery of possession of his share in the joint immovable property. The said application was opposed by the appellant basically on the ground that it was hopelessly barred by limitation. The said objection was overruled and the final decree was passed on 5-4-1999. Said decree was also challenged by the appellant by filing an appeal under section 96 of the Civil Procedure Code along with an application under section 5 of the limitation Act seeking condonation of delay. The first Appellate Court by order dated 25-9-1999 rejected the application under section 5 of the Limitation Act and as a result, the appeal was dismissed. Thereafter, appellants preferred Second appeal No. 553/1999. By order dated 17-12-2004, this Court allowed the application under section 5 of the Limitation Act filed by the appellant and the matter was remanded back to the lower Appellate Court for decision on merits. By the impugned judgment and decree, lower Appellate Court considered the matter on merits and thereafter dismissed the appeal holding that the application submitted by respondent on 26-4-1988 for preparation of final decree was not barred by limitation. Hence, this appeal.

(3.) THE only contention urged by learned counsel for the appellant is that the application for preparation of final decree would be governed by Article 136 or in the alternative, under Article 137 which is residuary Article. In support of his contention, learned counsel for appellant has relied upon decision reported in 1996 MPLJ 221, Nemichand Bherulal vs. Chironjilal Bhanwarlal.