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2000 DIGILAW 732 (MAD)

M. Subbiah & Others v. M. Ramachandran & Others

2000-07-28

V.KANAGARAJ

body2000
Judgment : 1. On 26. 2000, when C.M.P.No.2795 of 2000 filed to pass suitable orders to enable the parties to enforce the compromise filed in I.A.No.696 of 1997 in O.S.No.22 of 1984 on the file of the Court of Subordinate Judge, Devakottai has been taken up for consideration, with the consent of both parties and under Strong belief that instead of dealing with the C.M.P., the main C.R.P. itself can be taken up for consideration for better appreciation of facts and circumstances, the main C.R.P. itself has been taken up for consideration. 2. The plaintiffs Nos.5, 6, the proposed 7th plaintiff and defendant Nos.2, 28 and 29 in the suit have filed the above civil revision petition against the other defendants to the suit in O.S.No.22 of 1984 on the file of the Court of Subordinate Judge, Devakottai against the fair and decretal order 11. 1998 made in I.A.No.696 of 1997 by the said court. 3. Ona perusal of the materials placed on record including the order passed by the court below and the grounds of revision and upon hearing the learned counsel for both what comes to be known is that it is a suit originally filed by three plaintiffs viz., S.R.Krishnan, S.R.Murugesan and S.R.Dhanalakshmi Ammal against defendants praying to (a) direct the first defendant to render true and honest accounts in respect of the family properties in all respects from 1951 and make good the loss caused to the family by his fraud, misconduct, misfeasance, malfeasance, negligence and other improper conduct and pay to the plaintiffs their due share with interest, (b) further directing division of A-I and B schedule of immovable properties belonging to the joint family allotting 3/16 shares to the plaintiffs and putting them in separate possession of the same and (c) to direct the first defendant to pay the costs. 4. In the said suit, the plaintiffs Nos.5, 6 and the proposed 7th plaintiff and defendants 2,28 and 29, as petitioners have filed a petition under O.23, Rule 3 of the Code of Civil Procedure praying to register the compromise and the court below has ultimately dismissed the said application on the ground of maintainability as per its order dated 11. 1998 and it is this order which is impugned in the above civil revision petition. 5. 1998 and it is this order which is impugned in the above civil revision petition. 5. In the said application before the lower court, the petitioners have rayed to accept the terms of compromise as suggested in the petition among parties to the suit and to pass an order accordingly further setting aside the preliminary decree earlier passed on 22. 1992 and to declare the terms of compromise submitted anew in the said application. 6. Thelower court, remarking that in the preliminary decree already passed it had been decided that from out of the entire property in the suit schedule in A-I and B to J Schedules, 3/16 shares to go to plaintiffs 1 to 3 and 1/4th share to go to plaintiffs 4 to 6 and to divide the same in the said ratio; that while it had been decided in the preliminary decree in the above said manner, quite repugnant to the same, now the petitioners have come forward to make a mention of only a few properties from out of A I and B to J without mentioning the entire properties and from out of those few properties mentioned, they have suggested 1/4th share to go to plaintiffs No.5 to 7, another 1/4th share to go to defendants 2 and 10, yet another 1/4th share to be taken by defendants No.16 to 20 and 23 to 29 and the last 1/4th share to be divided among defendants No.5,6,8,9,21,22 and 30 to 34; that since the new proposal submitted in the shape of compromise is quite repugnant to the preliminary decree passed earlier and the new compromise sought to be made as an additional compromise is neither feasible nor even legal since the compromise proposed in the petition is in all manner opposed to the preliminary decree passed earlier the court below had ultimately dismissed the said petition. 7. It has been further pointed out by the court below that the petition filed is not for passing a final decree following the preliminary decree, but to record the compromise, though the terms of decree having already been determined and hence filing an application under O.23, Rule 3 of the Code of Civil Procedure for the purpose of registering the compromise alone is not acceptable and the same is irregular. The court below has also discredited the attitude of parties remarking that when a preliminary decree had been passed in the suit and without fixing any date when the case is adjourned sine die, accepting the proposed compromise as it is sought for on the part of the petitioners which is neither legal nor acceptable on facts further remarking that without filing an application by parties to the application under the relevant provisions of law filing only a compromise decree as proposed in the memo, is further unacceptable. 8. During arguments, the learned counsel for the petitioners would cite a judgment of this Court delivered in Kasi alias Alagappa Chettiar v. RM.A.RM.V.Ramanathan Chettiar alias Srinivasan Chettiar through its next friend AV.PL.CT. Ramanathan Chettiar and another Kasi alias Alagappa Chettiar v. RM.A.RM.V.Ramanathan Chettiar alias Srinivasan Chettiar through its next friend AV.PL.CT. Ramanathan Chettiar and another Kasi alias Alagappa Chettiar v. RM.A.RM.V.Ramanathan Chettiar alias Srinivasan Chettiar through its next friend AV.PL.CT. Ramanathan Chettiar and another, (1947)2 MLJ. 523 , wherein it has been held that, “Where in a suit for the taking of partnership accounts the court has adjudicated on the substantive rights of the parties with regard to the several matters in controversy in the suit and the determination of those matters is clearly intended to be final and conclusive so far as that court is concerned, the decision operates as a preliminary decree and is appealable. The mere fact that the court which passed the decree took the view that only findings and directions had been given and that no final disposal was made will not affect the question of appealability. The question whether an adjudication is a decree or not must be determined with reference to Sec.2(2) of the Code of Civil Procedure and not with reference to implications, true or supposed, arising from the general provisions relating to judgments and decrees or to disposals of suits. Nor can any considerations of policy as to the expeditious administration of justice or the avoidance of expense and delay be imported into determination of the question. There is nothing in the Code which can be construed as a prohibition against the court in a proper case passing more than one preliminary decree. On the other hand, there are indications that the Code contemplates more than one preliminary decree and one final executable decree in a suit.” 9. There is nothing in the Code which can be construed as a prohibition against the court in a proper case passing more than one preliminary decree. On the other hand, there are indications that the Code contemplates more than one preliminary decree and one final executable decree in a suit.” 9. So far as the above judgment is concerned, it has been made clear that the question whether the adjudication is a decree or not must be determined with reference to Sec.2(2) of the Code of Civil Procedure and not otherwise. It is further remarked therein that there is nothing in the Code which can be construed as a prohibition against the court in a proper case passing more than one preliminary decree. On the other hand, there are indications to the effect that the Code contemplates more than one preliminary and one final executable decree in a suit’. At this juncture, since it is Sec.2(2) of the Code of Civil Procedure on which emphasis is laid by the above judgment, it has become necessary on the part of this Court to extract the said Section: “Section 2(2) “decree” means the formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Sec.144, but shall not include. .(a) any adjudication from which an appeal lies as an appeal from an order, or .(b) any order of dismissal for default”. 10. A plain reading of the above section would import that the term “decree” conclusively determines the rights of parties with regard to all or any of the matters in controversy in the suit. It further connotes that such adjudication which conclusively determines the rights of parties may be either preliminary or final. Thirdly, it shall also be deemed to include the rejection of a plaint and the determination of any question within Sec.144. There are two exceptions for this general rule. They are, (a) any adjudication from which an appeal lies as an appeal from an order and (b) any order of dismissal for default. Thirdly, it shall also be deemed to include the rejection of a plaint and the determination of any question within Sec.144. There are two exceptions for this general rule. They are, (a) any adjudication from which an appeal lies as an appeal from an order and (b) any order of dismissal for default. It is clear that the case of the petitioners does not fall under any of these two exceptions so as to give the meaning that the decision that had been made earlier was not a decree so as to not become final. 11. Moreover, the adjudication within the meaning of the Section conclusively determining the rights of parties with regard to all or any of the matters in controversy in the suit would mean that there is no scope for passing more than one preliminary decree. The construction of the section is positive in nature and therefore giving a negative meaning which is quite repugnant to the spirit of the section is not proper as an attempt is made in the above judgment cited on the part of the petitioners to the effect that there is nothing in the Code prohibiting the court passing more than one preliminary decree so as to arrive at the conclusion that there are indications that the Code contemplates more than one preliminary decree and one final executable decree in a suit. ‘The expression the court… conclusively determines the rights of parties with regard to the matters in controversy in the suit’ would positively mean that the decree that is passed is final and binding unless it is testified otherwise as contemplated by the Code in accordance with the appeal or revisional provisions. Therefore, presuming that the Code does not prohibit any more decrees being passed, the positive emphasis that is laid that the court conclusively determines’ cannot be violated, so as to give an interpretation attributing the opposite meaning for the expressions conclusively determining the rights of parties’. 12. It is nothing short of a school boy, who has been specifically directed by the mother to attend to the classes and come back home, on reaching back home informing the mother that he spend the whole day in the playground since his mother did not instruct him not to do so. 12. It is nothing short of a school boy, who has been specifically directed by the mother to attend to the classes and come back home, on reaching back home informing the mother that he spend the whole day in the playground since his mother did not instruct him not to do so. If such negative approach is to be adopted, every day there would be such excuse or other for the boy to abstain from the classes for the whole year. Hence, it is a dangerous exercise that is is indulged in by the court having such negative approaches under the cloak that such approaches are not prohibited by the section, which is not at all the legislative intent. Therefore, it is only desirable to give the sections the positive, plain and ordinary meaning. 13. Therefore, the only conclusion that could be arrived at under such circumstances within the meaning of the Sec.2(2) of the Code of Civil Procedure is that there could be only one adjudication that is conclusive and binding and the court that passes the decree also becomes functus officio and no second decree could be either thought of or passed same such those which are permitted by law. 14. Further, the reasons assigned on the part of the court below thereby refusing to register the compromise proposed anew in view of the past commitments, the position of law on the subject and the manner in which the petitioners have approached the court without filing an application offering reasons thereby making it clear as to why the new compromises could be effected in the manner sought for, are on the expected lines and this court is of the view that there is absolutely no reason to interfere with the said order passed by the court below, which has all merits for acceptance. In the above circumstances, the interference of this Court that is sought for to be made into the order passed by the court below is not only unnecessary but also uncalled for. In result, the above civil revision petition fails and the same is dismissed. The fair and decretal order dated 11. 1998 made in I.A.No.696 of 1997 in O.S.No.22 of 1984 by the Court of Subordinate Judge, Devakottai is hereby confirmed. However, in the circumstances of the case, there shall be no order as to costs. Consequently, C.M.P.No.2795 of 2000 is also dismissed.