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2017 DIGILAW 1336 (ORI)

Nabaghan Swain v. Kusa Swain

2017-11-21

BISWANATH RATH

body2017
JUDGMENT : BISWANATH RATH, J. 1. This matter involves challenge to the order dated 3.2.2017 passed in T.S. No. 115 of 1996 (F.D.) in exercise of power under Order 20 Rule 18 of C.P.C. 2. Short background involved in the case is that the plaintiff-petitioner filed the T.S. No. 115 of 1996 (F.D.) for partition of the suit property claiming one sixth share in the suit property along with Ac. 0.76 decimals purchased by him out of the suit scheduled property. The suit was preliminarily decreed ex-parte against the defendants where the plaintiff was directed to be entitled to get one sixth shares towards his share and Ac. 0.76 decimals of land purchased by him from the share holders out of the suit property. It was also observed therein that failure in achieving an amicable partition of the suit property within the time framed, for partition of the suit schedule property through process of court on appointment of a civil court Amin commissioner. It also further reveals that after passing of the judgment and decree in T.S. No. 115 of 1996 the petitioner has subsequently purchased an area of Ac. 0.91 decimals out of the suit properties by virtue of a registered sale deed dated 22.01.2002 from the proforma opposite party who got the same by virtue of a gift deed executed by the deceased defendant no. 2 on 9.7.1991, in which both the defendants 2(a) and 2(b) had given their consent. The subsequent purchased land was also got mutated in favour of the proforma opposite parties in Mutation Case No. 5944 of 1992. Finding amicable partition of the joint properties involving the decree dated 20.1.1998, by meets and bounced was not possible due to non-cooperation of the opposite parties, the petitioner was compelled to file an application for final decree and also making an application for appointment of the Civil Court Amin Commissioner to make the partition of the suit property by meets and bounced with specific demarcation in the final decree proceeding. The petitioner filed a separate petition for modification of the preliminary decree dated 20.1.1998 passed in T.S. No. 115 of 1996 to include the subsequent purchase of land measuring Ac. 0.91 decimal or Ac. 0.89 decimals of the suit properties. The application was negatived on the ground that it will be amounting to modify the decree otherwise, which is not possible in a final decree proceeding. 0.91 decimal or Ac. 0.89 decimals of the suit properties. The application was negatived on the ground that it will be amounting to modify the decree otherwise, which is not possible in a final decree proceeding. 3. Learned counsel for the petitioner taking aid of the provision contained in Order 20 Rule 18 of C.P.C. contended that for the provision contained therein a partition suit remain alive so long as final decree is not concluded and on every eventuality taking place after the decree in the partition suit can be taken care of in the final decree proceeding applying the above provision. 4. Relying on some decisions in the case of Phoolchand and Another vs. Gopal Lal, AIR 1967 SC 1470 , Debendra Jena and Others vs. Umakanta Jena and Others, AIR 1988 Ori. 11 and Bhagabati Sahu and Others vs. Trilochan Sahu and after him Lakhpati Sahu and Others, 1989 (2) OLR 174, learned counsel for the petitioner submitted that the decisions have direct application to the petitioner’s case. Learned counsel for the petitioner accordingly submitted that the impugned order challenged herein not only remain contrary to the provisions of Order 20 Rule 1 of C.P.C. but also remain contrary to the settled position of law. Hence, learned counsel for the petitioner prayed for interfering with the impugned order and setting aside the same. 5. Opposing the stand taken by the learned counsel for the petitioner learned counsel for the opposite party nos. 1, 4 and 5 submitted that entertaining the claim of the plaintiff after the preliminary decree stage, will not only be amounting to interfere with the judgment and decree but such an attempt is also barred, as the executing court cannot go behind a decree. Learned counsel for the opposite party nos. 1, 4 and 5 taking this Court to the observations of the trial court involving the impugned order submitted that for the observations and the findings made therein, there is no infirmity in the impugned order requiring interference in the same. 6. Considering the rival contentions of the parties, this Court finds, there is no dispute that the suit is already decreed and that the property involved to be engaged at the final decree stage was purchased after the judgment and decree involving the suit. 6. Considering the rival contentions of the parties, this Court finds, there is no dispute that the suit is already decreed and that the property involved to be engaged at the final decree stage was purchased after the judgment and decree involving the suit. It is thus required to be considered here, as to whether the developments taken place subsequent to the judgment and decree involving a partition suit can be a part of the final decree in exercise of power under Order 20 Rule 18 of C.P.C. 7. Provision at Order 20 Rule 18 of C.P.C. reads as follows: “18. Decree in suit for partition of property or separate possession of a share therein - Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then: (1) If an in so far as the decree relates to as an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54. (2) If an in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.” 8. Reading of the aforesaid provision this Court has no doubt that the subsequent issues particularly the subsequent purchase from out of the suit property from the shares, can be entertained in the final decree proceeding and further direction can also be involved, further, preliminary decree is also a possibility but however, such preliminary decree should be taking place before the final decree is drawn and particularly involving a partition suit. 9. Looking to the decision cited at Bar by the learned counsel for petitioner in the case of Phoolchand and Another vs. Gopal Lal, AIR 1967 SC 1470 , it appears, the Hon’ble Apex Court in paragraph no. 9. Looking to the decision cited at Bar by the learned counsel for petitioner in the case of Phoolchand and Another vs. Gopal Lal, AIR 1967 SC 1470 , it appears, the Hon’ble Apex Court in paragraph no. 7 held as follows: “(7) We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible and obviously this is so because the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the Court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decrees, particularly in a partition suit due to deaths of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion. We thereafter hold that in the circumstances of this case it was open to the Court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further, as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial Court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. We therefore, agree with the view taken by the High Court that in such circumstances, a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree. We should however, like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contentions of the appellant.” 10. Looking to the other decisions cited at Bar in the case of Debendra Jena and Others vs. Umakanta Jena and Others, AIR 1988 Ori. 11 and in the case of Bhagabati Sahu and Others vs. Trilochan Sahu and after him Lakhpati Sahu and Others, 1989 (2) OLR 174 this Court finds, in both the decisions there is same view. 11. For the observations made hereinabove and for the clear provision in the Order 20 Rule 18 of C.P.C. and further for the settled position of law discussed hereinabove, this Court finds, rejection of the application of the plaintiff-petitioner involved herein is contrary to law and as such not sustainable in the eye of law. Thus, while interfering with the impugned order, this Court sets aside the same and directs the trial Court for considering the separate petition of the plaintiff-petitioner filed for modification of the preliminary decree, if necessary to draw a further preliminary decree looking to the subsequent developments and thereby modifying the shares of the parties. 12. The civil miscellaneous petition succeeds. Under the circumstances, there is no order as to cost.