SAJANI BEWA Vs. KARTIK SAHU

JUDGEMENT

(1.) This application under Section 115 of the Code of Civil Procedure is directed against the order of refusal of amendment of the plaint and the preliminary decree.

(2.) Plaintiffs who are petitioners filed Title Suit No. 67 of 1955 for partition and obtained a preliminary decree on 29-4-1961 declaring their 1/8 shares in the property. In course of the final decree proceedings, after the Commissioner was appointed to work out the preliminary decree, an application under Order 6, Rule 17 of the Code of Civil Procedure was made whereby plaintiffs asked for insertion of a large extent of property in which they claimed their share to be different from l/8th. After hearing parties, the trial court has rejected the application and this revision impugns the rejection.

(3.) As would appear from the application for amendment, plaintiffs sought for deletion of certain properties from the hotchpot and wanted new properties to be added. The preliminary decree in a suit for partition ordinarily settles the hotchpot, i.e., the properties to be partitioned and declares the shares of the parties Actual allotment in terms of the preliminary decree is left to be done at the final decree stage. The amendment in the present case has been asked for twentyfour years after the institution of the suit and also eighteen years after the preliminary decree. In regard to the new property, plaintiffs have claimed a higher share. This would require almost a re-trial of the suit. Allowing the amendment at this stage would necessarily require rectification of the decree. The preliminary decree has become final eighteen years back. There can be no justification for reviewing the decree at this stage on the basis of the application of amendment under Order 6, Rule 17, Code of Civil Procedure. Strictly speaking, an application under Order 6, Rule 17 of the Code could not be maintained for the amendment of the decree.