MAHESWARI BEWA Vs. SURENDRA BEHERA

JUDGEMENT

(1.) Defendant No 1 and her children (defendants 1 -Ka, 1 -Kha and 1 -ga) are the petitioners challenging the order dated 21.10.1982 rejecting the application of the petitioners filed under Section 4 of the Partition Act. The suit for partition was decreed on. 1 9 1976 and thereafter in course of the final decree proceeding, the Commissioner submitted a report which was accepted by the Court on 19.4.1982. The application by the petitioners under Section 4 of the Partition Act was filed on 30 8.1982. The only ground on which the said application has been rejected is that the final decree proceeding is virtually closed and, therefore, an application under Section 4 of the Partition Act cannot be entertained.

(2.) MR . Misra appearing for the petitioners contends that the final decree must be held to be continuing even though no objection to the Commissioner's, report had been filed and the said report had been accepted, inasmuch as the decree has not been finally signed and sealed. Mr. S. Misra -ll, the learned counsel for the opposite parties, on the other hand, contends that for all practical purposes, the final decree proceeding must be held to have been closed since there was nothing further to be done and signing and sealing is merely a clerical job.

(3.) IN the result, the order dated 21.10.1982 is quashed and the application filed under Section 4 of the Partition Act must be dealt with on its own merits. This Civil Revision is allowed, but in the circumstances, there will be no order as to costs.