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2014 DIGILAW 746 (KER)

Sunil Sethu v. Kunju Kunju Karunakaran

2014-09-25

K.ABRAHAM MATHEW

body2014
JUDGMENT 1. The validity of a final decree is challenged in this appeal. 2. The plaintiffs, two in number, and defendants, 3 in number, are children of one Kunjukunju and his wife Mythili, on whose death the plaintiffs and defendants became equally entitled to the plaint-A schedule property. The plaintiffs filed O.S.No.87 of 1977 for partition of the property. The first defendant raised a contention that the plaintiffs and the other defendants had agreed to sell their shares to him for Rs.42,000/-and the suit for partition was not maintainable. The trial court held that the agreement relied on by the first defendant amounted to a family arrangement and the only right of the plaintiffs and the other defendants was to receive the amounts mentioned in the family arrangement. Two appeals were filed against the decree namely A.S.Nos. 321 of 1982 and 357 of 1982. By a common judgment a Single Judge of this court dismissed the appeals subject to the modification of the decree to the effect that the plaintiffs and defendants 2 and 3 were entitled to get interest also @ 6 % per annum from 30.6.1977, the date on which the first defendant was bound to make the payments to the other sharers. AFA No.87 of 1991 and AFA 108 of 1991 filed against the said common judgment were dismissed on 19.11.1991. In 2011 the first defendant filed an I.A for passing a preliminary decree and another I.A, No.544 of 2011, for passing a final decree. The learned Sub Judge passed a final decree directing the first defendant to deposit Rs.42,000/-with interest as directed by this court in the decree in AS No.321 of 1982 and 357 of 1982. The interlocutory application filed for passing a preliminary decree was dismissed in view of the passing of the final decree. Thereafter, the first defendant filed E.P.116 of 2012 for execution of the final decree and he deposited the amount he was bound to deposit under the decree. The validity of the final decree is assailed in this appeal. 3. Heard Sri.K.S.Hariharaputhran and Sri.Azad Babu appearing for the first defendant appellant and the respondents respectively. 4. To understand the case in its right perspective it is necessary to bear in mind the legal consequence of a family arrangement. A family arrangement is made in lieu of partition. (Hiraji Tolagi Bhagwan v. Shakuntala AIR 1990 SC 619 ). 3. Heard Sri.K.S.Hariharaputhran and Sri.Azad Babu appearing for the first defendant appellant and the respondents respectively. 4. To understand the case in its right perspective it is necessary to bear in mind the legal consequence of a family arrangement. A family arrangement is made in lieu of partition. (Hiraji Tolagi Bhagwan v. Shakuntala AIR 1990 SC 619 ). It is partition by way of family settlement (Ramaswamy v. Venkitamal (AIR 1965 Madras 193). In this decision it is observed that a family arrangement has two fold character namely a partition and a settlement. In Digambar Adhar Patil v. Devram Girdhar Patil ( AIR 1995 SC 1728 ) the Supreme Court has held that even a family arrangement is enough to effectuate a partition. There cannot be any doubt that a family arrangement is as good as a partition. Once the court is satisfied that there has been a family arrangement it is its duty to recognize and sustain it. (K.V.Narayan v. K.V.Ranganathan AIR 1976 SC 1715 ). 5. In this case the decision of the trial court that there has been a family arrangement between the parties has become final with the confirmation of the decree by this court in the appeal suits and the appeals against the first appeals also. 6. The finding of the court that there has been a family arrangement between the parties necessarily means that the prayer of the plaintiffs for partition of the property was refused. According to the learned counsel for the appellant, so the question of passing a final decree for partition does not arise. But Sri.Azad Babu, the learned counsel for the respondents submits that this court in the common judgment in A.S.No.321 of 1982 and A.S.No.357 of 1982 has held that on the failure of the appellant to deposit the amount of Rs.42,000/-with interest the respondents would be at liberty to apply for passing a final decree for partition.(vide paragraph 18). This necessitates consideration of the nature of the decree passed by the trial court as confirmed by this court. 7. The explanation to Section 2(2) CPC says that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such an adjudication completely disposes of the suit. This necessitates consideration of the nature of the decree passed by the trial court as confirmed by this court. 7. The explanation to Section 2(2) CPC says that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such an adjudication completely disposes of the suit. The finality of a decree does not necessarily depend upon its being executable as observed in Venkata Reddy v. Pethi Reddy ( AIR 1963 SC 992 ). The test is whether the adjudication already made has completely disposed of the suit. Where the decree does not completely dispose of the suit it is a preliminary decree (Raghavan Pillai v. Damodharan Nair 1979 KLT 406 ). 8. By upholding the validity of the family arrangement the court has only recognized the settlement arrived at by the parties with the seal of approval of the court superadded to it. The direction to pay the amount is also part of it. The prayer for partition has been refused in view of the family arrangement. 9. After the passing of the decree nothing remained to be done to settle the disputes between the parties. The lis came to an end with the passing of the decree by the trial court. No issue survived for decision later. So the question of passing a final decree does not arise at all. The mere fact that this court in the common judgment in the appeal suits has observed that if the appellant fails to deposit the amount the respondents are at a liberty to apply for passing a final decree for partition does not entitle them to file an application for a final decree for partition. The court cannot grant the relief of partition, which it has already refused to grant. Non payment by the first defendant of the amount payable under the decree does not make it a preliminary decree. 10. It is also pertinent that the decree only casts a duty on the first defendant to pay the amount and does not grant any relief to him. He is not a decree holder. It is true that he could file an E.P for recording the payment as a judgment debtor is entitled to do so under Order 21 Rule 2(2) CPC. He is not a decree holder. It is true that he could file an E.P for recording the payment as a judgment debtor is entitled to do so under Order 21 Rule 2(2) CPC. But that shall not be on the basis of the impugned final decree but the earlier decree which disposed of the suit completely. What the learned Sub Judge has done in the impugned decree is only to reiterate the direction given in its earlier decree and in the modified decree of this court. 11. In the impugned final decree there is a direction to engross it on stamp paper. Engrossing decree on stamp paper presupposes a decree for partition. As no decree for partition has been passed - or could have been passed- the learned Sub Judge should not have made the direction. 12. More than 20 years after the disposal of the Appeals against the First Appeals the first defendant has deposited in the lower court the amount payable to the others, for which there cannot be any objection. The Law of Limitation will not affect their right to withdraw the amount as their right to the amount has not been extinguished. They may withdraw the amount notwithstanding the invalidity of the 'final decree'. In the result, this appeal is allowed and the decree under challenge is set aside. No costs.