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2002 DIGILAW 763 (PAT)

Sk. Junarbi v. Sk. Mahmood

2002-07-18

NAGENDRA RAI

body2002
Judgment 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 "whether the suit is barred by the existing laws". Later on, by order dated 16.9.2000, the said issue was amended as "whether the suit is barred by law of res judicata and estoppel". Both the parties led evidence and, thereafter, the aforesaid order has been passed. 3. Learned counsel appearing for the opposite parties, during the course of argument, raised an objection regarding maintainability of this Civil Revision as according to him the order disposing the suit as barred by res judicata is a final determination of the suit and is a decree and against which an appeal will lie and not a Civil Revision. 4. 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. 5. In my view, the objection raised by the opposite parties has substance and that has to be accepted for the reason mentioned hereinafter. 6. 5. In my view, the objection raised by the opposite parties has substance and that has to be accepted for the reason mentioned hereinafter. 6. Sub-section (2) of section 2 of the Code of Civil Procedure (for short the Code) defines the decree, which runs as follows : "(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 plaint and the determination of any question within section 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. Explanation.A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final." 7. According to the aforesaid definition, before a decision is to be termed as a decree, three ingredients are required to be fulfilled; firstly that there should be a formal expression of an adjudication by the court concerned; secondly that determination should be with regard to all or any of the matters in controversy between the parties and thirdly the decision should be conclusive so far as the court passing the order is concerned. 8. In the present case, all the said three ingredients are present. The controversy between the parties was as to whether the suit was barred by res judicata or not. The said controversy has been determined by the court below conclusively. 9. This Court in the case of Brahmdeo Prasad V/s. Baldeo Prasad, reported in 1998 (3) P.L.J.R. 486 has held that the determination of the question of limitation as a preliminary issue and dismissal of the suit as being barred by limitation is a decree within the meaning of sub-section (2) of section 2 of the Code and as such the revision is not maintainable against the said order. 10. 10. So far as judgment rendered by the Apex Court in the case of Ratan Singh (supra) is concerned, that was a case where the application for condoning the delay in filing the appeal was dismissed and consequently the appeal was also dismissed as time-barred and it was held that the same was not decree on the ground that no decision was taken in the appeal itself. 11. Such is not a situation here in this case, on the other hand, the observation made in paragraph 11 of the said judgment supports the case of the opposite parties wherein it has been held that in order that decision of a court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. So far as the judgment of the learned Single Judge in the case of Dr. Shashi Kumar Narain Singh (supra) is concerned, in that case the suit was dismissed as not maintainable. The learned Single Judge held that the Civil Revision is maintainable because the finding was arrived at without framing any issue and the same cannot be said to have construed a decision within the jurisdiction of the court concerned. Thus, in the facts of that case, it was held that the Civil Revision was maintainable. It was not held therein that the decision on the question of res judicata by the court after framing of an issue will not be treated as a decree in terms of the definition. 12. In the result, it is held that the impugned order is a decree within the meaning of section 2(2) of the Code and as such the petitioner should pursue the remedy of appeal. The Civil Revision is not maintainable. 13. The Civil Revision is, accordingly dismissed.