Azizabi vs Fatima Bi and others

Madhava Reddy, J.—The short question that falls for consideration in this Civil Miscellaneous Appeal directed against the order in I. A. No. 2245/72 in O.S No. 21/67 on the file of the Subordinate Judge, Tenali is: Whether in a suit for partition, once a final decree directing division of properties by metes and bounds is made another final decree for profits could be made in an application for ascertainment of profits filed after the final decree for partition?

The appellant herein is the plaintiff in O.S. 21/67 on the file of the Subordinate Judge, Tenali, a suit for partition and separate possession of the plaintiff''s share of properties and for ascertainment of profits. A preliminary decree for partition was passed in that suit on 30-7-1972 which directed partition of the plaintiff''s half share in the plaint A.B.C. schedule properties and ascertainment of profits from the date of suit till the date of partition and payment of her share. 2. The plaintiff filed I. A. 2117/71 for appointment of a Commissioner to divide the properties in accordance with the directions in the preliminary decree and for passing a final decree. After the submission of the Commissioner''s report, the plaintiff filed I.A. 2176/72 for passing a final decree as per that report. A final decree was accordingly made on 7-10-1972. The plaintiff there after filed I.A. 2245/72 on 3-11-1972 for appointment of a Commissioner to ascertain profits.

The defendants opposed this petition inter-alia on the ground that once a final decree for partition is passed and properties are allotted to the decree-holders, no petition for ascertainment of profits lies thereafter and is maintainable. That objection was upheld by the lower court and the application was dismissed as not maintainable. This appeal is directed against that order.

From the above narration of the admitted facts, it is clear that:-

i) the preliminary decree contained a direction not only for partition and separate possession of the plaintiff''s share of the plaint schedule properties but also for ascertainment of profits and payment of the plaintiff''s share of the profits and

ii) that a petition for ascertainment of profits was filed after the application for partition of the lands by metes and bounds was enquired into and a final decree was made in that behalf on 7-10-1972.

The question therefore is whether such a petition is maintainable.

Sub-section (2) of Section 2 of the CPC defines a decree as under :--

2 (2) "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or Section 144, but shall not include--

a) any adjudication from which an appeal lies as an appeal from an order, or

b) any order of dismissal for default

Explanation : A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes for the suit. It may be partly preliminary and partly final.

From the definition of the "Decree" read along with the explanation, it would be seen that where after a decree is made, further proceedings have to be taken before the suit could be completely disposed of such a decree is preliminary. But where an adjudication by the Court completely disposes of the suit, that decree is final, The Code also envisages decrees partly preliminary and partly final. It is silent on the question whether more than one preliminary or final decree could be made. Basically keeping this definition of decree in view, if we judge the adjudications in the present suit, there can be little doubt that the decree made in O. S. No. 21/67 on the file of the Subordinate Judge, Tenail on 30-7-1972, directing partition and separate possession of the plaintiff''s share of the properties and ascertainment of her share of profits, as a preliminary decree. The parties herein also did not dispute this position. The parties also agree that the adjudication made and the decree that followed-upon the ordering of I.A.No. 2176/72 directing partition and separate possession of the plaintiff''s half share of the plaint A, B and C Schedule properties on 7-10-1972 constitutes a final decree. The controversy is only on the question whether another final decree directing the payment of plaintiff''s share of the profits could be made upon an application filed subsequent to 7-10-1972. According to the trial court and the learned Counsel for the defendants-respondents Mr. Subbayya, unless the petition for ascertainment of mesne profits and for passing a final decree for her share of profits was filed by the plaintiff before the final decree directing division of the properties by metes and bounds, another final decree could not be made. According to him, there cannot be more than one final decree otherwise, it would be a misnomer to call the decree made earlier in this case on 7-10-1972, a final decree.

Mr. Seshagiri Rao, learned Counsel for the plaintiff-appellant, however, contends that there is no prohibition against passing of any number of preliminary decrees and final decrees. He urges that no restriction is placed upon the power of the Court to pass a final decree for ascertainment of mesne profits after a final decree directing the division of the properties and allotment of shares is made.

These contentions require two points to be considered.

Whether the Court may make more than one final decree in a partition action? and

If more than one final decree could be made, whether the final decree for profits could be made even on an application filed after the final decree for partition of the plaint schedule properties is made?

It is now well settled that in certain classes of suits, where preliminary and final decrees are envisaged for example suits for dissolution of partnership and accounts, and suits for partition and separate possession of the plaintiff''s share of the properties and profits arising therefrom, more than one preliminary decree may be passed. In Kasi v. Ramnathan Chettiar 1947 (II) M. L. J. 523 Patanjali Sastry J., dealing with a case of dissolution of partnership and accounts, expressed thus :

............The question is not whether the Code allows more than one preliminary decree or one final decree to be made, but whether the Code contains a prohibition against the Court in a proper case passing more than one such decree. We are unable to discover any thing in the Code that can be construed as such prohibition. On the other hand as we have already observed, there are indications that the Code contemplates more than one preliminary decree and one final or executable decree in a suit.

After referring to the several decided cases, throwing light on this question, the learned Judge further observed :

It will thus be seen that decisions of the several courts which had occasion to consider the question are by no means uniform, and we do not feel pressed by any current of authority to hold that the court, in a proper case has no power to make more than one preliminary decree and one final decree, at any rate in those classes of suits in which the Code expressly provides for the passing of a preliminary decree. As we have already observed, it would often be found convenient to the Court and advantageous to the parties, especially in such classes of suits to have disputed rights finally settled by an immediate resort to the Court of appeal, if so desired, before further proceedings on the basis of such rights are undertaken at much expenditure of time and money which otherwise might ultimately be found to have been thrown away, and the Courts'' powers of so regulating its procedure as to make this possible should not, in our opinion, be fettered by ruling out the possibility of more than one preliminary decree in a suit, not on the strength of any prohibition contained in the Code for we find none, but on the ground that it does not "contemplate" such possibility.

Although the observations of the learned Judge in our opinion comprehend not only the passing of more than one preliminary decree but also the making of more than one final decree in disposing of the suit, the case with which the Bench was concerned in Kasi vs. Ramanathan Chettiar 1947 (11) MLJ 523 was one in which the question raised was "whether more than one preliminary decree could be passed and not whether more than one final decree could be made?" However, a close reading of that decision would show that the learned Judges approved the view that not only more than one preliminary decree but also mere than one final decree could be made for completely disposing of the suit. That is clear from the fact that during the course of the discussion, their Lordships disagreed with the observations of Krishnan, J. with reference to the opinion expressed in Mahalakshmamma v. Rojamma (1918) 43 I. C. 458 and Maimod Rowther v. Durari Swamy Naiker (Unreported) AAC 277/1917 Krishnan, J, had observed as follows:--

Neither the rule contemplates more than one preliminary decree and one final decree in one suit. In fact, the Code nowhere contemplates more than one preliminary decree and one final decree in one suit. To have two final decrees and to call the first one a final decree will be really a misnomer as it will not be final. To hold the view taken in Mahalakshmamma V. Rajamma (1918) 43 I. C. 458 and Maimod Rewther V. Duraiswamy Neither (Unreported) ACC 277/1917 is, it seems to me, with all respect to the learned Judges, to unnecessarily lengthen our proceedings with a possibility of appeals and second appeals from atleast three different decrees in the same suit.

In coming to the conclusion it did, the Full Bench also referred to the observations of their Lordships of the Privy Council in Muhammed Abdul Mazid v. Mohd Abdul Aziz 24 I.A. 22 with reference to the pissing of preliminary decrees. ''The learned Judges of the High Court have examined the Code minutely to show that subordinate Judge Kashi Nath Biswas acted under its provisions. Their Lordships think that such an examination is hardly necessary. The Subordinate Judge had before him a case consisting of two parts; question of title, and an incidental question of account depending largely on the title. It was for the obvious advantage of the parties, and they proposed, that the first part should be decided and the second reserved for decision. In point of fact the first has been the subject of successive appeals by the defendant, who successfully struggled against the trial of the second part pending these appeals. If the Code forbade the parties and the Court so to arrange the disposal of law suit, it would be very a startling thing. It is not pretended that Code contains any such prohibition''.

The view erpressed by some of the High Courts that there can be only two decrees the first a preliminary decree and the second a final decree and in between these two stages there can be no other decree passed by the Court or thereafter did not meet with the approval of the Bench in Kasi alias Alagappa Chettiar and Others Vs. Rm.A.RM.V. Ramanathan Chettiar alias Srinivasan Chettiar through his next Friend, AV.Pl.Ct. Ramanathan Chettiar and Another,

Earlier in Ramanathan Chetti v. Alagappa Chetti 1929 (59) M.L.J. 102 the Bench was of the view that more than one preliminary decree and a final decree could be passed, But it was still contended that the Court merely held that more than one preliminary decree could be made and not that it can pass more than one final decree.

In Babburu Basavayya and Others Vs. Babburu Guravayya and Another, the Full Bench was concerned with a case where in a suit for partition of joint family properties while there was no prayer for ascertainment of profits realised pending the suit the plaintiff applied by way of an interlocutory application, for enquiry into such profits and for passing a final decree. That application was opposed on the ground that in the plaint no relief for recovery of such profits was prayed for and there was no such directions in the preliminary decree. The trial Court overruled these objections and directed an enquiry into profits. Dismissing the Civil Revision Petition against that order, the Full Bench while approving the views expressed in Kasi v. Ramanathan Chettiar 1947 (II) M.L.J. 523 held as follows :--

A judicial determination of the amount of future profits has to be made with reference to any one of the three events specified in O.20 R. 12 Sub. R (1) (c), whichever event first occurs. If a preliminary decree awarding possession contains a direction for enquiry into future mesne profits, the suit or that part of the suit relating to future mesne profits continues to be pending and the D. Hr. might move the court to hold an enquiry and pass a final decree awarding such profits without the necessity of filing an application within the period prescribed by Art. 181 Limitation Act. This is the effect of the decision in Ramasubramania vs. Karimbi Pati ILR 1940 Mad 372 and the Madras amendment of O.20 R. 3. If, to use the language of Ghulusum Bibi vs. Ammadsa Rowther 42 Mad. 296 the preliminary decree ''intentionally omits'' that is to stay, refuses to direct an enquiry into future mesne profits, that decision will, subject to the result of any appeal, be binding on the parties in all the subsequent stages of the suit and no application can thereafter be made in the course of the suit for an enquiry into such profits. Where a decree awarding possession is silent with regard to an enquiry into future mesne profits and the decree has not completely disposed of the suit which, for one reason or another, continues to be pending, there is nothing in the CPC prohibiting the D. Hr. from applying to the Court during the pendency of such suit for an enquiry into furtue mesne profits or the court from ordering such an enquiry. The Court may, in the exercise of its discretion, refuse an enquiry leaving the D. Hr. to a fresh suit for such profits. If it does order an enquiry it is bound to incorporate the result in a final decree. Unlike O.20 R. 12 and 16 and Or. 34 R. 2, 4, and 7, C.P.C. O.20 R. 12 is not mandatory and does not insist on a preliminary decree containing all the directions referred to in R. 12. There is no express or implied prohibition in the CPC against awarding possession and directing an enquiry into future mesne profits by successive adjudication in a pending suit though the normal and ordinary procedure would be to pass a preliminary decree a warding possession and also direct an enquiry into future mesne T.S. Swaminatha Odayar, lately a minor by guardian Meenakshi Achi but now declared a major and guardian on record discharged Vs. T.S. Gopalaswami Odayar and Others, In any case an order directing an enquiry into future mesne profits passed subsequent to the preliminary decree but during the pendency of the suit cannot be said to be without jurisdiction.

The Full Bench though concerned only with the question whether the Court could direct an enquiry into profits after the preliminary decree in a suit for partition where relief for a share of profits was claimed or directed under the preliminary decree, in our opinion, the above observations unmistakably point out that the court is empowered to pass more than one final decree in a suit for partition.

We, therefore, hold that there is nothing in the Code which precludes the Court from making more than one final decree in a suit for partition, one for partition and separate possession of properties and the other for profits. In this case, therefore notwithstanding the final decree for partition and separate possession of the plaintiff''s half share of the plaint schedule properties made upon an application I.A. 2176/72, another final decree directing ascertainment of profits and awarding a half share therein to the plaintiff could be made by the Court.

That still leaves the second point urged by Mr. Subbayya, learned counsel for the respondents that even if the court has the power to make a separate final decree for profits it would not exercise that power unless a petition for ascertainment of profits was filed before the final decree for partition and separate possession of the plaintiff''s share of the properties was made: any petition for ascertainment of profits and for passing a final decree for profits thereafter is not maintainable. If we turn to the definition of the decree at this stage, which includes both preliminary decree and final decree, it would be noticed that a decree is final "when such adjudication completely disposes of the suit". The definition of the decree contained in the Code does not by itself putany limitation on the power of Court to make one or more final decrees: nor does it declare that the Court would become functus officio or would be bereft of its jurisdiction, no sooner than it passes a final decree irrespective of whether that decree finally disposes of the suit or not. On the other hand, when even after a decree further proceedings have to be taken before the suit could be said to have been completely disposed of, such a decree would be still be preliminary and would not be a final decree. The Code does not enjoin that the final disposal of the suit should be by a single adjudication or under a single decree; nor does it enjoin that a single application should be filed for passing a final decree in respect of all the reliefs claimed in the suit or with reference to all the directions contained in the preliminary decree.

The Full Bench case of Babburu Basavayya and Others Vs. Babburu Guravayya and Another, was one where a petition for ascertainment of profits was made even during the pendency of the suit and not after the final decree was made and therefore, the question whether any final decree for profits could be passed did not arise. However, in that Judgment the Court observed:--

Whether a decree awarding possession is silent with regard to an enquiry into future mesne profits and the decree has not completely disposed of the suit which, for one reason or another, continues to be pending, there is nothing in the CPC prohibiting the D.Hr. from applying to the Court during the pendency of such suit for an enquiry into future mesne profits or the Court from ordering such an enquiry.

In view of these observations, what is crucial for determining whether a petition for enquiry into profits is maintainable or not, once a final decree for partition of the properties is made, is to ascertain whether the suit has been completely disposed of, by any earlier order, and so long as the suit is not disposed of, there is nothing in the Code which prohibits the court from passing one or more final decrees to completely dispose of the suit.

A Bench of this Court in Achemma vs. Rami Reddy 1957 ALT 869=AIR 1958 AP 517 held that ''where a decree awarding possession is silent with regard to an enquiry into future mesne profits and decree has not completely disposed of the suit which, for one reason or another continues to be pending, there is nothing in the CPC prohibiting the decree-holder from applying to the Court during the pendency of suit for an enquiry into future mesne profits or the Court from ordering such an enquiry''.

That such a petition could be filed so long as the suit is pending is not seriously disputed even by the learned counsel for the respondent. The question, however, is whether the suit could be said to have been disposed of by the passing of final decree for partition and separate possession of the properties where the suit was one for ascertainment of profits also and in which the Court while making a preliminary decree directed not only the division of the properties but also ascertainment of profits. The further question also would be whether if the suit is not disposed of by merely dividing the properties and allotting one share to the plaintiff decree-holder, whether after such a final decree, an application could be entertained for ascertainment of profits and another decree made. We do not find any provision which prohibits the filing of such an application and the learned counsel also fairly conceded that there is no express provision in this regard. It is now well settled that in a suit for partition, although there is no specific prayer for awarding profit''s, the Court has power to direct an enquiry into profits and grant a decree for plaintiffs share there in vide Achemma vs. Rami Reddy 1957 ALT 869=AIR 1958 A.P. 517. If that be so, and if it is the duty of the Court to adjudicate the rights of the parties with reference to all the reliefs prayed for in the suit, in a suit for partition when even if there was no claim for profits, the court has power under Or. 20, R. 18 CPC to make an enquiry into profits suo motu or on a subsequent application during the pendeney of the suit and sward the same, we do not Sec. any reason why the Court cannot exercise that power when an application in that behalf is made by a party claiming to be entitled to the properties where there is an express prayer in the suit for such a relief and an express direction in the preliminary decree for enquiry into the profits claimed. The fact that the Court has passed a final decree with respect to one of the several reliefs prayed for in the suit and one of the several directions in the preliminary decree, cannot debar the Court from passing another final decree in accordance with the other directions in the preliminary decree. Nay, it is the duty of the court to carry cut the directions in the preliminary decree and to fully and completely dispose of the suit. Order 20, Rule 18 CPC� which specifically applies to suits for partition and ascertainment of profits reads as follows:--

Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then:

1) If and in so far as the decree relates to 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 and in so far as such decree relates to any other immoveable property or to moveable 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 direction as may be required.

This envisages passing of a preliminary decree declaring the rights of the several parties interested in the property and also giving all such further directions as may be required which includes a share in profits arising from such properties. Those directions contained in the preliminary decree have to be finally adjudicated by making a final decree. The final decree for partition which merely divides the properties by metes and bounds into several shares and allots one such share to the decree-holder does not fully carry out all the direction in the preliminary decree and does not completely dispose of the suit. So long as the profits are not ascertained and the shares are not allotted, the suit would be pending. Once the suit is pending, the parties are at liberty to file a petition for disposing of the same by making a final decree and it is the duty of the Court to do so. The passing of a final decree for division of the properties cannot stand in the way of the court completely disposing of the pending suit. Hence, in our view, another final decree could be passed for profits on an application made before or after the passing of the previous final decree for division of the properties by metes and bounds and thereby completely dispose of the suit.

A similar view was taken by Alagiriswamy, J., (as he then was) In M. Rajangam Ayyar Vs. Natesa Chettiar, Dealing with a case where although the preliminary decree provided for ascertainment of mesne profits, profit were not ascertained in the final decree, the learned Judge held that the Court can pass another final decree providing mesne profits after ascertainment. The basis for such a conclusion was:

A suit cannot be said to have been finally disposed of until all the prayers in the plaint have either been granted or specifically refused. In the present case the preliminary decree having provided for ascertainment of mesne profits and its being not having provided for mesne profits, it is open to the Court to ascertain it and pass another final decree. There is nothing to prevent such a course being adopted by the Court.

It would, however, appear that in the case, the petition for ascertainment of mesne profits was filed and was pending before the passing of the final decree for partition and allotment of plaintiff''s share of the properties. But we do not think that on principle that makes any difference, for if the preliminary decree directed not merely partition of the properties but also ascertainment of profits and payment of plaintiff''s share therein as prayed for in the suit, unless that direction in the preliminary decree is finally granted or rejected by passing a final decree the suit cannot be laid to have been completely disposed of. So long as any of the relief claimed or in respect of which the preliminary decree is passed remains to be disposed of by way of a final decree, the suit must be deemed to be pending. The suit for partition and separate possession and ascertainment of plaintiff''s share of profits could be completely disposed of only by granting or refusing all these reliefs. In the absence of any specific prohibition in the Code as to the passing of more than one final decree any such prohibition if implied, would nullify the power of the Court and the rights of the parties would remain undecided. For creating such an impasse there is no warrant in the provisions of the Code. That would thwart justice, rather than advance it.

Raghavan, J., in B.N. Thiagarajan and Others Vs. B.N. Sundaravelu, took the view that enquiry into profits must conclude before the final decree for partition and separate possession of the plaintiff''s share of the properties is passed. According to the learned Judge, a separate final decree for profits arising from the plaint schedule property cannot be separately passed but separate final decrees for partition of each item of property and profits arising from that item of property could be passed. Even this decision in principle lays down that more than one final decree could be passed. We are, however, unable to agree with the view that in regard to each item of property a final decree for partition and profits should be made under the same order and that no separate final decree for profits could passed after a final decree for partition of all the items of the properties had been earlier made. For this conclusion there is no warrant in the provisions of the Code. Nor is it convenient and practicable.

In Manicka Mudaliar and Others Vs. Munilakshmammal, Krishnaswamy Reddy, J., considered both the above decisions and agreed with the view expressed in M. Rajangam Ayyar Vs. Natesa Chettiar, . The facts of that case are similar to the one with which we are now concerned. After the final decree for partition was made on 28-2-1964 in pursuance of the directions contained in the preliminary decree for partition and separate possession and mesne profits a petition for ascertainment of profits was filed. That petition was resisted mainly on the ground that a final decree had already been passed and that it had become final in all respects and no separate application could be filed thereafter, That contention was negatived by the trial Court and was upheld by the learned Judge on appeal.

Mr. Subbiah, learned counsel for the respondents relied upon a decision of the Andhra Pradesh High Court in Krishnamma vs. Latchmanaidu AIR 1968 A.P. 520. That was a case in which party to a partition suit filed an application for ascertainment of future mesne profits, even before the passing of a final decree while an appeal against that final decree was pending in which the profit were not incorporated, the court held that the decree of the lower court had become final and that it was no longer open to the appellant to claim profits in the suit. That was a case in which there was no prayer for ascertainment of profits and apportionment of plaintiff''s share of properties nor was there any direction in the preliminary decree for ascertainment of profits. Whether in such a case an application for ascertainment of profits subsequent to the final decree may be filed or not is a matter with which we are not directly concerned. We must, however, observe that in that case so far as the reliefs prayed for in the suit were concerned they were finally granted by the final decree and hence the suit could no longer be deemed to be pending and as such, perhaps a final decree could not be passed. However, we do not wish to express any opinion in this aspect of the question. We would only like to emphasise that so long as the reliefs prayed for in a suit for partition and separate possession and ascertainment of profits are not either expressly granted or rejected and so long as the directions contained in the preliminary decree regarding devision of the properties and allotment of the shares therein and the ascertainment and allotment of the decree-holder''s share of the profits are not carried out by either granting or refusing them notwithstanding the passing of a final decree with reference to one of the directions in the preliminary decree, a petition for passing a final decree, with reference to the other directions in the preliminary decree is maintainable and the Court is empowered to past more than one final decree to completely dispose of the suit.

In view of the above discussion, we hold that I.A. 2245/72 is maintainable. This Civil Miscellaneous Appeal therefore, suceeds and is accordingly allowed. On the ground that the petition itself was not maintainable, the lower Court has not enquired into mesne profits. There shall therefore be a direction to the lower Court to make an enquiry in this regard after affording an opportunity to both the parties to educe evidence and dispose of the matter within a period of three months from the date of the receipt of the record in the lower court and pass a final decree. The costs of this appeal would abide the result of I. A. 2245 of 1972.