PALAMPETIYAN NELUKULLATHIL UNNI MOYAN Vs. PALAMPETIYAN NELUKULLATHIL KATTIYAMMA

JUDGEMENT

(1.) In a suit brought by the plaintiff for partition and recovery of her share under the Muhammadan Law from the defendants, the other sharers, a preliminary decree was passed by the Munsif declaring the shares to which the plaintiff and the various defendants were severally entitled, directing the partition by metes and bounds and delivery to each of them of his or her share of the property. This decree was, with some modification, confirmed on appeal. Before the properties were actually divided by the Commissioner, the plaintiff applied to withdraw the suit. Her application was granted by the Munsif and the suit was dismissed. The Subordinate Judge has set aside this decree in appeal and directed the Munsif to pass a final decree so far as those defendants are concerned, who, having obtained a decree for partition, object to the suit being now dismissed. The 1st defendant, who is in possession of the properties, has tiled that appeal. It is contended before us that under Order XXIII, Rule 1, the plaintiff is, at any time, entitled to withdraw her suit. Her Pleader went so far as to contend that even if the properties had been actually divided by the Munsif and a final decree passed, yet, if the matter is pending in appeal or second appeal, it is open to Ms client to withdraw the suit and ask the Court to set aside a decree for partition that may have been passed and dismiss the suit. We are clearly of opinion that this contention is unsustainable. The preliminary decree that has been already passed declares the rights of parties. It gives the contesting defendants Nos. 2, 3 and 6 the right to claim that the properties be divided as ordered by the decree and that they be put in possession of their share of these properties. It is not open to any of the parties to nullify the effect of that decree so far as the other parties are concerned. The matter in dispute, so far as it is settled by the decree, has become res judicata. Order XXIII, Rule 1, does not, therefore, apply. See Satyabhamabai v. Ganesh Balkrishna 29 B. 13 : 6 Bom. L.R. 533. In Ashidbai v. Abdulla Haji Mohmed 31 B. 271 : 8 Bom. L.R. 652 and 758 there was no decree in plaintiff s favour and, therefore, no declaration of the rights of parties.

(2.) It is also contended that there is no appeal against the Munsif s order allowing the plaintiff to withdraw the suit. But the suit was dismissed and the preliminary decree was set aside. An appeal, therefore, clearly lay from the Munsif s order or decree.

(3.) This Civil Miscellaneous appeal is dismissed with costs of defendant Nos. 2, 3 and 6.