Arun Kumar, J. - (1.) JUDGMENT
(2.) THIS appeal is directed against an order dated 19th June, 1998 of the High Court of Andhra Pradesh whereby the order of the trial court rejecting an application of the plaintiff under Order XXVI Rules 13 and 14 read with Section 151 of the Code of Civil Procedure was set aside and the trial court was directed to take steps towards passing a final decree. Briefly the facts are : Parties to the suit are closely related being members of a family of four brothers. Plaintiff No. 1 was the widow of the eldest brother. On 14th May, 1975 she filed a suit for partition of the joint family immoveable properties in the court of the District Judge, Adilabad (A.P.). Plaintiff No. 2 is the daughter of plaintiff No. 1 Defendants are younger brothers of husband of plaintiff No. 1 and members of their families. During the pendency of the suit, parties arrived at a compromise. A joint application was filed under Order XXIII Rule 3 CPC praying that the compromise be recorded and a decree in terms of the compromise be passed; The learned District Judge passed the decree on 13th July, 1978 on the basis of the said compromise application. The entire controversy in the present appeal revolves around the decree dated 13th July, 1978. The question is whether the said decree was a final decree or a preliminary decree. Defendants are the appellants in this appeal while plaintiff is the respondent. We will refer to the parties as plaintiff and defendants. On 20th September, 1991 plaintiff No. 2 (plaintiff No. 1 had died in the meanwhile) moved an application under Order XXVI Rules 13 and 14 read with Section 151 CPC praying that a Commissioner be appointed to divide the joint properties by metes and bounds and to allot separate shares as per the decree dated 13th July, 1978. In the body of the affidavit filed in support of the said application, the plaintiff stated that she had been put in separate possession of properties at Serial Nos. 1, 2, 3 and 5 in Schedule -I to the decree dated 13th July, 1978 while properties at Serial Nos. 4, 6 and 7 were put in joint possession. According to the plaintiff, a Commissioner had to be appointed in pursuance of the decree to divide the joint properties as per shares of parties by metes and bounds and to allow separate possession and enjoyment thereof. Only defendant No. 1 filed a reply to the said application opposing the same. According to the defendant with the passing of the decree dated 13th July, 1978 pursuant to the compromise arrived at between the parties, the final partition had taken place and nothing remained for taking any further steps for partition. He averred that in view of change in value of the properties with the passage of time, the plaintiff was trying to wriggle out of the decree dated 13th July, 1978. In October, 1985 in view of such an attitude of the plaintiff a further arrangement had taken place between the parties. The said arrangement had also been acted upon. Even during the pendency of the application, a compromise in writing had taken place between the parties on 5th July, 1992. It was a Memorandum of family arrangement to which the plaintiff was a party. The same had been arrived at in the presence of parties and others including some advocates. The defendant pleaded that in view of the subsequent developments, the court may pass a decree in accordance with the Memorandum of family arrangement executed between the parties. In any case as per the stand of the defendant, the application under reply was not maintainable and was also hopelessly barred by time having been made more than 12 years after the decree dated 13th July, 1978. The learned District Judge framed the following points for consideration for deciding the application : 1. Whether the application is maintainable under law? 2. Whether there was any settlement between the parties subsequent to the passing of the compromise decree and for that reason the petitioner is not entitled to ask for appointment of Commissioner for the purpose of further division by metes and bounds? 3. To what relief?
(3.) THE trial Court recorded oral evidence on the said application. THE defendants examined five witnesses. THE plaintiff however did not examine herself nor she lead any documentary evidence. Defendants also proved certain documents on record. THE stand of the defendants is clear. According to them nothing remained for taking any further steps by the court which means that according to defendants the decree dated 13th July, 1978 was a final decree and therefore such an application was not maintainable. Defendants lead oral evidence regarding October, 1985 oral settlement between the parties which was said to have been also acted upon. THEy led evidence regarding the 5th July, 1992 settlement by way of Memorandum of family arrangement. THE learned District Judge dismissed the plaintiff's application by order dated 4th February, 1993. THE application was held to be not maintainable. THE learned District Judge accepted the 1985 arrangement by way of mutual agreement between the parties and stated that the said arrangement had been acted upon. THE District Judge, however, did not take into consideration the subsequent family arrangement dated 5th July, 1992 because it was alleged to have taken place after the application under consideration had already been moved. The plaintiff filed a revision petition under Section 115 CPC in the High Court against the order of the District Judge dated 4th February, 1993. The High Court by its impugned judgment dated 19th June, 1996 allowed the Civil Revision Petition setting aside the order of the District Judge. The High Court treated the decree dated 13th July, 1978 as a preliminary decree and, therefore, it entertained the application for final decree. The High Court rejected the evidence led by defendants to establish the oral agreement of 1985. It weighed with the High Court that even as per defendant No. 1 the oral arrangement of 1985 stood superseded by an arrangement of 1992. The High Court further noted that according to both the parties the 1985 arrangement did not survive. The July, 1992 arrangement was rejected also on the ground that it was not signed by all the parties. It was signed only by three parties. In addition, it was observed that the said document was neither properly stamped nor it was registered. The High Court refused to accept that the decree dated 13th July, 1978 stood satisfied for the reason that satisfaction of the decree had not been recorded in accordance with provisions of Order XXI Rule 2 CPC. For all these reasons, the High Court directed the trial Court to proceed with the application and take steps for passing a final decree in the suit.;