PASUPATI DUTTA Vs. KALPANA DUTTA

JUDGEMENT

(1.) A preliminary decree dated July 24, 2014 has been passed in the present suit for partition. The plaintiff has applied for modification of such preliminary decree primarily on two grounds. The first ground being that the learned Counsel for the plaintiff was not heard on July 4, 2014 when the hearing of the suit was concluded. The second ground being that the dwelling house at Premises No. 21, Girish Avenue, Kolkata - 700003 should be attempted to be partitioned by metes and bounds in accordance with the scheme proposed.

(2.) IN support of the contention that the preliminary decree dated July 24, 2014 could be modified, learned Counsel for the plaintiff relies upon (Steel and Allied Products Ltd. v. Gerbueder Bohlar and Co., 0 75 CalWN 416). Referring to the scheme for partition submitted by way of an affidavit affirmed on behalf of the plaintiff on April 6, 2015, it is submitted that a Valuer may be appointed so as to find out the total area of the premises concerned floor wise and the value of the property so that the modality of the partition as suggested could be worked out. The application is opposed by the defendant nos. 1A and 1B as well as the defendant no. 2.

(3.) ON behalf of the defendant nos. 1A and 1B it is submitted that, the preliminary decree has attained finality. The same could only be modified by review under the provisions of Order 47 Rule 1 of the Code of Civil Procedure, 1908. The present application is not one for review of the decree. In any event no ground for review exists. The same could also be modified by a procedure recognized by the Code of Civil Procedure, 1908. Section 151 of the Code is not available to the petitioner. Moreover, the preliminary decree dated July 24, 2014 and the present application has been made on January 8, 2015. The application therefore is barred by limitation. So far as the ground of the learned Counsel for the plaintiff not being heard on July 4, 2014 is concerned, it is submitted that the suit had been heard on diverse dates. On July 4, 2014 the learned Counsel for the plaintiff did not appear during the entire period when the suit was heard. Since the learned Counsel for the plaintiff did not appear on July 4, 2014 for professional reasons the question of recalling the decree on such ground does not arise. Engagement of the learned Counsel for the plaintiff in another Court is no ground for recall the decree. Relying upon (Venkata Reddy and Ors. v. Pethi Reddy, 1963 AIR(SC) 992) it is submitted that, the preliminary decree dated July 24, 2014 has attained finality between the parties. It could be modified and/or reviewed under the provisions of the Code of Civil Procedure, 1908. The present application does not fit any of the provisions of the Code of Civil Procedure, 1908.