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2016 DIGILAW 724 (ORI)

Bhaskar Chandra Rath v. Snehalata Ratha

2016-08-31

D.DASH

body2016
JUDGMENT The petitioners in this writ application under Articles 226 and 227 of the Constitution of India seek quashment of the order dated 25.02.2013 passed by the learned Civil Judge, (Senior Division), Nilgiri in the Final Proceeding No.47 of 1973-I corresponding to O.S. No.47 of 1973. These petitioners are the defendant Nos. 4 and 5 in the said suit, whereas opposite parties 1 to 9 who are now contesting here are the legal representatives of said Daitary who had filed the suit for partition as plaintiff. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereafter have been referred to as they have been arraigned in the trial Court. 3. Facts essential for the purpose may be stated hereunder : The above suit for partition stood preliminarily decreed on 31.01.1977. In the said suit, only the defendant Nos. 15 and 16 contested and other did not. The following is the order : “That the suit be decreed preliminarily on contest against the defendant Nos.15 and 16 as ex parte against rest of the defendant but no cost. It is so ordered that the plaintiff is entitled to 1/4th interest out of “Lot No.1 of Schedule ‘Kha’; properties” and also entitled to be properties purchased under the sale deed Ext.1 and 2. Defendant Nos.15 and 16 are entitled to the land purchased under the sale deed Ext. B. Xx xx xx Thereafter the matter finally came before this Court in Misc. Appeal No.133 of 1978.the order finally passed therein runs as follows : “ I therefore allow this appeal and set aside the order of the learned Sub Judge, Balasore and as a consequence the ex parte decree passed against the appellant in O.S. No.47 of 1973, is set aside. Xx xx xx So the matter was again taken up by the trial Court only affording the opportunity to the defendant No.18 whose legal representatives are before this Court as opposite parties No.34 to 40. On 16.07. 1987 the trial Court passed the following order :- “ The suit is decreed on contest against defendant No.18 but without cost. Xx xx xx So the matter was again taken up by the trial Court only affording the opportunity to the defendant No.18 whose legal representatives are before this Court as opposite parties No.34 to 40. On 16.07. 1987 the trial Court passed the following order :- “ The suit is decreed on contest against defendant No.18 but without cost. The defendant No.18 is directed to transfer the Lot No.2 of Schedule ‘Kha’ land to the plaintiff in three months time from today failing which the plaintiff shall be at liberty to seek for repurchase of the said land through process of the Court upon depositing the price of consideration of the said land. The partition decree passed in the earlier judgment between the plaintiff and defendant Nos.15 and 16 on contest, other defendants ex parte is to be modified according to the terms of the order as against defendant No.18 passed in this judgment.” 4. This was no more challenged by any of the party. In the final decree proceeding, the Civil Court Commissioner was deputed to make division of the property as ordained in the preliminary decree. As it stands after the modification as aforesaid by order on 16,07.1987, then certain discrepancies were noticed in the original preliminary decree. Upon application filed by the plaintiff under Order 20, Rule 18 (2) of the Code of Civil Procedure read with Section 151 of the Code for correction of the preliminary decree dated 08.04.1977, the trial Court by order dated 22.05.2010 allowed the same. The earlier preliminary decree that had been passed to the effect that the plaintiff is entitled to 1/4th interest out of “Lot No.1 of Schedule ‘Kha’ properties” and also entitled to the properties purchased under sale deed Ext. 1 and 2 thus underwent modification. The modifications are instead of in Lot No.1 of Schedule ‘Kha’ properties; “out of ‘Kha’ schedule properties” stood incorporated in the second sentence and also in the said sentence, the word “also entitled” stood obliterated and entitlement of the plaintiff to the relief under Section 4 of the Partition Act stood incorporated. It thus stand as under : “It is ordered that the plaintiff is entitled to 1/4th interest out of the “Kha” scheduled properties and to the properties purchased under the sale deeds Ext. It thus stand as under : “It is ordered that the plaintiff is entitled to 1/4th interest out of the “Kha” scheduled properties and to the properties purchased under the sale deeds Ext. 1 and 2 and entitled to the relief under Section 4 of the Partition Act and the defendant Nos. 15 and 16 are entitled to the lands purchased under the sale deed Ext.B. Xx xx xx”. 5. This order was straightway challenged by the defendant Nos. 4 and 5 filing the writ application before this Court which stood numbered as W.P. (C) No.30652 of 2011. The specific prayer was there for quashment of the order dated 25.2.2013 passed by the trial Court in which the original preliminary decree stood modified, with the further prayer for a direction for drawal of the final decree in consonance with the judgment and decree dated 16.07.1987 and 01.08.1987 respectively. This Court dismissed the writ application. Being aggrieved by the same, these defendant Nos. 4 and 5 filed writ appeal numbered as Writ appeal No.201 of 2012. By order dated 01.10.2012, the writ appeal was also dismissed. When the matter stood thus, on 30.01.2013 these defendants 4 and 5 came up before the trial Court carrying an application under Order 20, Rule 18 of the Code for modification of the preliminary decree passed in the said suit. This petition having been rejected refusing to further modify the preliminary decree at the behest of the defendant Nos.4 and 5 as prayed for, the move is now with the present writ application. 6. I have heard the learned Counsel for the petitioner and opposite party Nos.1 to 9 at length who have also submitted their notes. I have gone through the order dated 25.02.2013 as also the preceding orders right from the first preliminary decree onwards. Now here we are simply concerned with the prayer of these defendant Nos. 4 and 5 as advanced in the trial Court which has not been found favoured with. The petition is under Annexure-5 and its nomenclature is under Rule 20, Rule 18 of the Code. The relevant portion is as at page-4 which touches the fact of the case, be now quoted hereunder for better appreciation :- “ 4. That the plaintiff and defendant No.4 and 5 have their family deity over the said suit land. The petition is under Annexure-5 and its nomenclature is under Rule 20, Rule 18 of the Code. The relevant portion is as at page-4 which touches the fact of the case, be now quoted hereunder for better appreciation :- “ 4. That the plaintiff and defendant No.4 and 5 have their family deity over the said suit land. As per the preliminary decree the specific order was regarding repurchase from defendant No.18 by the plaintiff only which is required to be modified under the changed land supervening circumstances. It is respectfully submitted that no appeal has been filed challenging the preliminary decree. Regarding this matter earlier an application was filed by the defendant Nos. 4 and 5 which was rejected as non-moved. The earlier petition was not heard on merit.” Para-6 to some extent also appears to be relevant, which is as under : “6. That the defendant No.4 and 5 have their residential building over the suit land in such a situation and taking consideration of the situation of the present suit land and tank etc. it needs modification of preliminary decree, otherwise the house of the defendant Nos. 4 and 5 will be demolished. The prayer portion is most important which is :- Xx xx by passing necessary orders for modification of the preliminary decree giving preference to the defendant Nos. 4 and 5 for repurchase from the defendant No.18 as the plaintiff plaintiffs have already half share after purchase 1/4th share from the defendant No.1.” 7. This has been seriously resisted by the plaintiffs. It is stated that said part of the preliminary decree has attained finality and therefore the question of modification of the same does not arise. 8. Learned Counsel for the petitioners contends that the Court has all the power to draw more than one preliminary decree in suit for partition before the final decree is drawn and the objective behind this is to take care of the supervening circumstances, so as to do justice to the parties keeping their entitlement as ordered in the preliminary decree intact. So, it is submitted that these defendant Nos. 4 and 5 when have their house and tank over the “Kha” schedule land, they be given right to repurchase to the extent of their share and to that extent, the preliminary decree accordingly need be modified. 9. So, it is submitted that these defendant Nos. 4 and 5 when have their house and tank over the “Kha” schedule land, they be given right to repurchase to the extent of their share and to that extent, the preliminary decree accordingly need be modified. 9. Learned Counsel for the opposite parties 1 to 9 contends that the matter is no more open to challenge. According to him, the question of repurchase has already been decided by the trial Court after the order passed by this Court in Misc. Appeal and that trial Court’s preliminary decree concerning the plaintiff and defendant No.18 was not challenged by in any party and thus it has also attained finality. The supervening circumstances have no role in the matter of modification when it concerns with entitlement of the parties and the rights which have already been determined and thus cannot be legally taken cognizance of for the purpose. 10. The position of law is well settled that in a suit for partition before the final decree is drawn, the Court has the power to draw more than one preliminary decree. But the rider is that the entitlement of the parties as ordained in the preliminary decree which have attained finality in that way can in no way to be tinkered with. It is only for the purpose of proper work out of the preliminary decree in the field to take care of those circumstances and remove those other circumstances which came to stand on the way of the same. It is permissible to take into consideration all subsequent events and if after preliminary decree for any event thereafter, there arises the necessity of change of share. But the matters determined in the preliminary decree cannot be gone into. 11. A final decree proceeding does not originate in itself, but follows a preliminary decree in a suit. The final decree proceedings start only after determination of the rights and interests of the parties in relation to land. Under the provisions of Order 20, Rule 18, Civil Procedure Code, the preliminary decree declares the rights of the parties interested in the property. The final decree proceeding is to enforce what has already been decided, which may even mean that it excludes declaration of right and interest in land which has already been declared by the preliminary decree. Under the provisions of Order 20, Rule 18, Civil Procedure Code, the preliminary decree declares the rights of the parties interested in the property. The final decree proceeding is to enforce what has already been decided, which may even mean that it excludes declaration of right and interest in land which has already been declared by the preliminary decree. The final decree proceedings only relate to matters which are provided in the preliminary decree as to physical division or as to on account for mesne profits but do not relate to the decision of any substantive rights of the parties as the title to the parties. 12. The relation of a preliminary decree to a final decree was considered by Rankin, C.J. in the Full Bench case of Taleb Ali and another v. Abdul Aziz and others; AIR 1929 Calcutta 689, and it was said that the function of the final decree is merely to the state and apply with precision what the preliminary decree has ordained and that the final decree is not only based on but is also controlled by the preliminary decree and cannot travel beyond it. This principle was followed by the Patna High Court in the case of Banwari Lal and others v. Shaikh Shatrullah and others; AIR 1940 Patna 204. 13. The preliminary decree passed in the present suit stands final and conclusive between the parties as it was not challenged by way of appeal. Under Section 97 of the Code of Civil Procedure where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. Constructing the provisions of Section 97, C.P.C. the Supreme Court in the case of Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992 observed as follows : “......... This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree.” It was further observed : “..... A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree ... the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the Court arrived at the earlier stage also has a finality attached to it.........” 14. In the case in hand not only that the matter of repurchase has attained its finality but also the subsequent order of the trial Court passed on 22.05.2010 despite the challenge in the writ application as also the further in writ appeal thereof has withstood the tests. So now the acceptance of the prayer of the defendant Nos.4 and 5 as advanced for modification of the preliminary decree in the present case as sought for in my considered is not entertainable since it is going to tinker the preliminary decree as it stands for final in respect of the entitlements of the relief which does not concerned in any way with any sought of adjustment or enhancement or reduction in case of the supervening circumstances and rather it prejudicially affects the party causing deprivation to that extent. This acceptance of the prayer thus now may go to upset the decision in the writ as confirmed in appeal which is not permissible. 15. For the aforesaid discussion and reasons, this Court finds that by order dated 25.02.2013 there has neither been failure of justice nor there has arisen the occasion of the miscarriage of justice calling for interference of this Court in this present writ application. 16. The writ application is accordingly dismissed. Application dismissed.