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2001 DIGILAW 307 (KER)

Ravindran v. Janardhanan

2001-06-19

K.A.MOHAMMED SHAFI

body2001
Judgment :- K.A. Mohamed Shafi, J. The order in I.A. 390/1999 in O.S. No. 132/1994 passed by the Munsiff's Court, Kannur is assailed in this revision petition. 2. O.S.132/1994 was filed for partition of the plaint schedule property and a preliminary decree for partition is passed by the lower court. LA. 2415/96 was filed to pass final decree for partition in terms of the preliminary decree. The property sought to be partitioned was having an extent of 21.75 cents of land with a residential building. The commissioner who was appointed in the final decree proceedings found not convenient to divide the property by metes and bounds. Therefore, he suggested sale of the property among the parties by valuing the plaint schedule property at Rs. 11,47,175/-. As per the Order in I.A. 1924/98 dated 30.7.1998 the lower court accepted the Commissioner's suggestion and directed to sell the property in auction " among the sharers. The petitioners applied for a certified copy of the decree passed as per I. A. 1924/98 in C. A. No. 1503/98. The court rejected the application by stating that only an order is passed in I.A. 1924/98 and no decree is passed in that I.A. and directed that the aggrieved party can agitate the matter on the judicial side by filing petition. Subsequently, the petitioner have filed the above LA. 390/99 under S.151 of the CPC to direct to draft a decree in I.A. 1924/98. The lower court dismissed the application by the impugned order. 3. The petitioners herein who are the defendants 4,6 & 7 in the suit and petitioner No. 3 and respondents 3 & 4 in LA. 1924/98 have contended that the order passed in I.A. 1924/98 amounted to a decree affecting the rights of the parties very vitally and the court ought to have drafted the decree as per the order in the I.A. and issued certified copy of the decree to the petitioners as applied for by them. The respondents attempted to support the finding of the lower court that only an interlocutory order is passed in the I.A. and no decree need be drafted as per the order in that I.A. 4. The respondents attempted to support the finding of the lower court that only an interlocutory order is passed in the I.A. and no decree need be drafted as per the order in that I.A. 4. The facts that a preliminary decree for partition is passed in the suit and in I.A. 1924/98 in the final decree proceedings the lower court passed order directing sale of the plaint schedule property in auction among the sharers and to divide the sale proceeds among the sharers as suggested by the commissioner appointed in the final decree proceedings since it was not feasible to partition the house and property by metes and bounds among the sharers, even though the petitioners had objected to the sale of the property as suggested by the commissioner, are not in dispute. Therefore, it is clear that by the impugned order of the rights of the parties to the suit are vitally affected and the order directing to sell the property in the final decree proceedings after passing preliminary decree for partition of the property in an ancillary proceedings as per the order in I.A. 1924/98 amounts to a decree as defined under S.2(2) of the C.P.C. appealable under law. 5. It is well settled that more than one preliminary decree can be passed in a suit and the provisions of the C.P.C. do not contain any prohibition against the court from passing more than one preliminary decree in a suit for partition. 6. In the decision in Vissanna v. Viswabrahman (AIR 1957 A.P. 25) a single judge of the A.P. High Court following the decision of the Madras High Court in Kasi v. Ramanathan Chettiar (1947-2 Mad.L.J. 523) held that more than one preliminary decree can be passed in a suit for partition and the order passed by the court directing sale of the plaint schedule property is a decree open to challenge in appeal. In that judgment the learned Single Judge has observed as follows: "The order has a general effect upon the entire proceedings in the suit and forever precludes the possibility of the plaintiff getting an allotment in specie of his share of the common property. This was a right to which the plaintiff was entitled as a co-sharer and as a member of a joint family suing for partition. This was a right to which the plaintiff was entitled as a co-sharer and as a member of a joint family suing for partition. This right is negatived by the order of the trial court, and the order is final and conclusive so far as the trial court is concerned. As pointed out in the decision in Kasi v. Ramanathan Chettiar (1947-2 Mad. L.J. 523 (C) there is nothing in the Civil Procedure Code which can be construed as a prohibition against the Court in a proper case passing more than one preliminary decree. Where in suit for partition an order has been passed adjudicating on the substantive rights of the parties with regard to the matters in controversy in 7. The decision in Mayitnu alias Bambathi Bibi v. Cheria Maliyammal Mayimu (1968 KLJ 103) a single judge of this Court has held that the direction by the court to sell one of the items of the plaint schedule property finding that it cannot be conveniently divided among the sharers is a final adjudication of the rights of the parties regarding the manner in which that item has to be divided and therefore, it amounts to a preliminary decree amenable to appeal. In that judgment this Court has observed as follows: "3. The order in question has directed the sale of item I as the Court below took the view that it cannot be conveniently divided among the sharers. There is therefore a final adjudication of the rights of the parties regarding the manner in which item has to be divided. It will therefore amount to a preliminary decree. The fact that no forma! decree has been drawn up is no indication to show that it is not a final order coming within the meaning of S.2 sub-s.(2) of the CPC. If the order in question conclusively determines the rights of parties a decree should have been drawn up." 8. In this case this Court directed the trial court to draw up a formal decree in terms of the order which was assailed in that case. I am in respectful agreement with the views expressed by this Court as well as the Andhra Pradesh High Court in the above decisions. In this case this Court directed the trial court to draw up a formal decree in terms of the order which was assailed in that case. I am in respectful agreement with the views expressed by this Court as well as the Andhra Pradesh High Court in the above decisions. Therefore, it is clear that the order passed by the lower court directing sale of the plaint schedule property among the sharers amounts to a preliminary decree passed in the suit after passing the original preliminary decree in the final decree proceedings and that order comes within the ambit of a decree as defined under S.2(2) of the CPC amenable to appeal. Therefore, the lower court was in manifest error in rejecting the copy application filed by the petitioners to issue a certified copy of the decree passed in the I.A. and declining to draw the decree as per the order in the I.A. as sought for in the above petition by the petitioners. Therefore, this C.R.P. is allowed. The impugned order is set aside and the lower court is directed to draw up a decree as per the order in I.A. 1924/98 and to issue copy of the same to the petitioners, if applied for in accordance with law.