- (1.) THIS is a revision under S. 115, C.P.C. by Smt. Bittan Devi and live others, defendants, against the order dated 20-8-1962 of the Additional Munsif of Kanpur, dismissing their application for separation of their share through the agency of a commissioner.
(2.) THE material facts of the case are that Rudra Sen Bajpai, opposite party No. 1, instituted a suit for partition of his 1/24th share in the properties in dispute belonging to the parties Kashi Narain Bajpai, since dead and now represented by applicants Nos. 1 2 and 6, and applicants Nos. 3 to 5, were defendants Nos. 1 to 4 in the suit. The other defendants Nos. 5 to 10 are the present opposite parties Nos. 2 to 7. There was a compromise between the parties whereunder the share of the plaintiff and of defendants Nos. 5 to 10 was held to be one-third and of defendant Nos. 1 to 4 two-third. A preliminary decree was passed accordingly, but it appears that neither the plaintiff, nor defendants Nos. 5 to 10, took steps for the passing of the final decree Defendants Nos. 5 to 10 had also not paid any court-fee for the separation of their share. When no steps were taken by the plaintiff and defendants Nos. 5 to 10 for the separation of their share, the present applicants as legal representatives of defendant No. 1 and the others as defendants themselves moved the present application for separation of their share. The Munsif rightly thought that three questions required consideration : firstly, whether it was necessary for the defendants-applicants to pay court-fee before any action could be taken on their application; secondly, whether there was any stage upto which a party should pay court-fee and apply for the preparation of the final decree; and thirdly, whether the preliminary compromise decree declared the share of the applicants and thereby gave them a right to take steps for the preparation of the final decree.
(3.) THE Munsif rightly held that court-fee to the extent of the defendants-applicants share was payable on the application, but took the wrong view that an application made after the passing of the preliminary decree was not maintainable and that the preliminary compromise decree already passed did not determine the applicants interest in the property.;