MURTHUJABI Vs. NILAMMA

JUDGEMENT

(1.) This writ petition is filed by the petitioner-defendants challenging the order passed by the Final Decree Court allowing the application filed under Order 9 Rule 14 of CPC appointing City Surveyor, Bijapur as Court Commissioner to carry out the measurements of the suit property in CTS No. 1138/2C1 of Ward No. III of Bijapur to effect the actual division of plaintiffs 4/9th share by metes and bounds. The case of the petitioners is that they are the owners in lawful possession of house property bearing CTS No. 1138/2C/1A situated at Ward No. 13 of Bijapur City. The predecessor in title had purchased the property under a registered sale deed dated 22.03.1960. The respondents herein filed a suit in O.S. No. 113/1964 on the file of the Addl. Munsiff, Bijapur, for partition and separate possession against the father of these petitioners and others. The said suit came to be decreed on 21.12.1967 awarding 1/9th share to each of the parties. The petitioners' father preferred R.A. No. 72/1968, which came to be dismissed. Therefore, the said decree attained finality on 21.12.1967. The final decree proceeding was initiated in FDP No. 1/81, which came to be dismissed for non-prosecution on 30.01.1985. In the mean while, the properties have been sold. Now the respondents have initiated final decree proceedings in FDP No. 2/2008 for effecting partition by metes and bounds in terms of the preliminary decree. In the said proceedings they have filed an application for appointment of Court Commissioner for effecting partition. The said application was opposed firstly, on the ground that the application is barred by time. Secondly, on the ground that the earlier application had been dismissed and therefore the second application is not maintainable. Thirdly, on the ground that after the preliminary decree, if the final decree application came to be dismissed, the parties have alienated the properties under a registered document, possession has been delivered and mutation entries have been made on the basis of the sale deeds. Therefore at this stage the question of effecting partition in terms of the preliminary decree would not arise. Lastly, it was contended that as the petitioners are in possession of the property adversely to the interest of the respondents, they have perfected their title by adverse possession. Overruling the said objections, the Final Decree Court has allowed the application. Aggrieved by the said order, the present writ petition is filed.

(2.) I have heard learned Counsel for the parties.

(3.) In a suit for partition as well as mortgages there are two decrees, preliminary decree and final decree. The preliminary decree passed, is not a tentative decree but must, insofar as the matters dealt with by it are concerned, be regarded as conclusive. In suits which contemplate the making of two decrees a preliminary decree and a final decree, the preliminary decree as such cannot be put to execution. What can be executed is a final decree, and not a preliminary decree. The legislature in its wisdom has thought that suits of certain types should be decided in stages. In such cases the suit 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, but is not executable.