BIJAN KUMAR SHAW Vs. SUMITRA SHAW

JUDGEMENT

(1.) Defendants judgment debtors have filed this application under Article 227 of the Constitution of India, challenging the order dated 26th July, 2000 passed by learned First Court, Additional District Judge, Alipore in Civil Revision No. 200 of 1995 whereby and whereunder by quashing and setting aside the impugned order thereto being order dated 6th February, 1995 passed by the learned Assistant District Judge, Seventh Court, 24-Parganas (S), Alipore in Title Suit No 34 of 1967, directed the learned trial Court to dispose of the report of the Pleader Commissioner for Accounts in respect of its acceptance upon giving the opportunity of hearing to the contesting defendants and by passing a reasoned order to that effect.

(2.) Title Suit No. 34 of 1967 of the Court of learned Assistant District Judge, Seventh Court, 24-Parganas (S), Alipore was a partition suit. On 10th April, 1967 preliminary decree was drawn up directing defendants to render accounts in connection with the suit property with effect from 19th September, 1954 within three months from 10th April, 1967 failing which a Commissioner would be appointed to take the accounts on the plaintiff's petition upon deposit of costs. Final decree was passed on 10th January, 1982. By Title Execution Case No. 17 of 1983 in respect of the partition of the disputed property of Title suit 34 of 1967 aforesaid was disposed of on 13th November, 1984. Plaintiff of the suit filed an application for appointment of Commissioner for accounts with reference to the preliminary decree directing to file such application as passed on 10th April, 1967 and such application was allowed on 7th May, 1992 ex-parte by the learned Court below. The report of the pleader Commissioner came up for acceptance on issue of final report of accounts when defendant of the suit filed objection by taking various grounds and more particularly the ground of limitation upon urging inter alia, that by the preliminary decree dated 10th April, 1967 when there was a direction to the plaintiff to file application in the event, accounts was not rendered by defendant within three months relating to the suit property, the application of the plaintiff after long expiry of such in the year 1992 was time barred. It was contended that application was required to be filed at least within three years from 10th April, 1967, the date of preliminary decree and after the final decree was passed pertaining the suit property, there was no scope to deal with the matter further. It was contended further that while the learned Court below passed the order appointing pleader Commissioner for accounts ex-parte, the proper service to the parties were not at all considered though it was on record that service report came with the endorsement 'dead' on respect of some parties. On hearing the matter learned Court of Seventh Assistant District Judge, Alipore by the order dated 6.2.95 rejected the Commissioner report on account by contest. Challenging this order Civil Revision No. 200 of 1995 was filed under section 115A of the Code of Civil Procedure before the learned first Court of Additional District Judge at Alipore by the plaintiff of the suit. Learned Revisional Court below upon holding inter alia, that in a partition suit there may be so many preliminary decrees and so many final decrees and there is no limitation and the Limitation Act is not applicable for delayed application filed by the plaintiff praying for appointment of pleader Commissioner to report on accounts in respect of the suit property in view of failure of the defendant to submit the accounts allowed the same but relating to the point of acceptance of the report directed hearing of parties on such score. Be it noted that the defendant raised the point in the Revisional Application about quantum as fixed by the pleader Commissioner being Rs 4 Lakh 66 Thousand and twenty, contending inter alia, that there was no reason by which the pleader Commissioner reached to that conclusion. However, considering that the Revision Application was allowed and the learned Court below was directed to hear the objection regarding acceptance of the Pleader Commissioner report but rejected the contention that the application for such appointment of Pleader Commissioner was barred by Limitation Act as raised by the defendant. Assailing this, the defendant judgment debtors has filed this Revisional Application and reiterated the same points before this Court as was adjudicated in the Revisional Application by the learned Court below. It is a settled legal position now by the different judgments of the Court that in a partition suit there may be so many preliminary decrees and final decrees. Further, it is settled that unless and until suit is finally disposed of on all the points, application for final decree can be passed and there may be so many final decrees. Learned Court below relied the judgment in the case Manicka Mudaliar & Ors. v. Munliakshmammal, reported in AIR 1973 Mad 157 as well as the judgment in the case Murugan v. Chidambaram Pillai & Ors., reported in AIR 1991 Mad 307. In a judgment in the case M. Rajangam Ayyar v. Natesa Chettiar, reported in AIR 1968 Mad 431 it is held "I should say that in this case where the preliminary decree provides for ascertainment of mesne profits and the final decree does not provide for mesne profit. It would be open to this Court to pass another final decree after ascertainment of mesne profits. A suit cannot be said to have been finally disposed of until all the prayers in the plaint have either been granted or specifically refused. In the present case the preliminary decree having provided for ascertainment of mesne profits and its being not having provided for mesne profits, it is open to the Court to ascertain it and pass another final decree. There is nothing to prevent such a course being adopted by the Court. I cannot accept the argument on behalf of the respondent that because the final decree already passed does not provide for mesne profits, the plaintiff's prayer for mesne profits should be deemed to have been refused".

(3.) Relying upon the said view, it is clear that when the preliminary decree was passed directing the defendant to submit the accounts within three months relating to the suit properties as enjoyed by him, passing of final decree pertaining to the property in terms of the shares determined in the preliminary decree, the right of the plaintiff did not evaporate to agitate the matter of accounts by the defendant in terms of the preliminary decree. In a partition suit as already held by me that there may be so many preliminary decrees and so many final decrees, accordingly the application cannot be said as time barred as filed by the plaintiff of the suit praying for accounts by appointment of a Pleader Commissioner and the order of such appointment was proper and right as passed by the learned Court below. This point is also clear even from the definition of the 'decree' as provided under section 2 Clause (2) of the Code of Civil Procedure, which provides as follows: