JUNARBI Vs. MAHMOOD

JUDGEMENT

(1.) PLAINTIFF is the petitioner against the order dated 19.12.2000 passed by the 4th Subordinate Judge in Partition Suit No. 62 of 1999 holding that the suit is barred by principle of res judicata, estoppel and waiver.

(2.) THE plaintiff filed a suit for partition. The defendant raised objection that the suit is barred by res judicata, estoppel and waiver and the court below framed a preliminary issue on 8.5.2000

(3.) LEARNED counsel appearing for the petitioner submitted that the order did not determine the controversy between the parties conclusively and the suit has been disposed of on the point of res judicata only and as such the same is subject to the revision and not appeal. In support of his submission, he relied upon two judgment; one of the Apex Court in the case of Ratan Singh V/s. Vijay Singh, reported in 2001 S.A.R. (Civil) 123 and of this Court in the case of Dr. Shashi Kumar Narain Sinha V/s. Smt. Pratima Sinha, reported in 2002 (1) P.L.J.R. 549. In the case of Ratan Singh (supra), it has been held that the rejection of application for condonation of delay will not amount to a decree and consequently dismissal of an appeal on the said ground is not a decree.