MAYIMU ALIAS BAMBATHI BIBI Vs. CHARIYA MALIYAMMAL MAYIMU
LAWS(KER)-1967-10-15
HIGH COURT OF KERALA
Decided on October 31,1967

MAYIMU ALIAS BAMBATHI BIBI Appellant
VERSUS
CHARIYA MALIYAMMAL MAYIMU Respondents

JUDGEMENT

- (1.) A preliminary objection was raised by the respondents' counsel that the order is appealable and hence the revision will not lie. To appreciate the contention of the respondents' counsel it is necessary to state the circumstances leading to the passing of the order, which is the subject matter of revision. A preliminary decree for partition had been passed and final decree proceedings are pending. The commissioner has filed the report dividing the properties by metes and bounds. Applications were filed by some of the parties for remitting the report to the commissioner for making some alterations. On hearing those applications the learned Judge directed that since it is not convenient to divide item 1 by metes and bounds among the sharers it has to be sold in public auction and necessary directions were given to the commissioner to sell the same. The contention on behalf of the respondents was that this direction regarding the sale of item 1 is a final adjudication of the rights of the parties in regard to the mode of division of item 1 and will therefore amount to a decree and hence appealable. In support of his contention the decisions in Vissanna v. Viswabrahmam AIR 1957 AP 25 and Krishnamma v. Latchumanaidu AIR 1958 AP 520 were relied on.
(2.) The law is now well settled that in a partition suit there can be any number of preliminary decrees This position has been affirmed by their Lordships of the Supreme Court in Phoolchand v. Gopal Lal AIR 1967 SC 1470 where they observed: "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 shares of other parties are thereby augmented."
(3.) The order in question has directed the sale of item 1 as the court below took the view that it cannot be conveniently divided among the sharers. There is therefore a final adjudication of the rights of the parties regarding the manner in which item I has to be divided. It will therefore amount to a preliminary decree. The fact that no formal decree has been drawn up is no indication to show that it is not a final order coming within the meaning of S.2 sub-s.(2) of the CPC. If the order in question conclusively determines the rights of parties a decree should have been drawn up. The test whether an order is one finally determining the rights of parties must depend upon the nature of the order and not whether a decree has been prepared or not. The learned counsel for the revision petitioner relied on the decision in Shardaban Hirachand v. Chandrasen Motichand ILR 1966 Guj. 143. There the learned Judge has proceeded on the ground that no decree has been prepared. With great respect, I am unable to follow the said view. The view I have taken is supported by the decisions in Vissanna v. Viswabrahmum AIR 1957 AP 25 and Krishnamma v. Latchumanaidu AIR 1958 AP 520. In Visanna v. Viswabrahmam AIR 1957 AP 25 a preliminary decree was passed in a suit for partition directing that the properties should be divided into three equal shares and the plaintiff, should be put in possession of one share. After the" commissioner filed the report the Trial Court directed that the property should be sold among the different sharers and the highest bidder should be allotte the entire property, the others being directed to be paid their share of the price realised by the sale of the property. The question arose whether the order of the Trial Court is a decree within the meaning of S.2(2) of the CPC. In considering the said question Viswanatha Sastri, J. observed: "Where in a suit for partition an order has been passed adjudicating on the substantive rights of the parties with regard to the matters in controversy in the suit and depriving them of a right which normally they are entitled to enforce in a partition suit, the order is one which should be regarded as a decree open to appeal." The decision is followed in Krishnamma v. Latchumanaidu AIR 1958 AP 250.;


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