K.S. Doraiswami Nadar (Died) and Others vs Vinayaka Ratnaswami Nadar and Others

K. Veeraswami, J.—The order of the Court below appears to be clearly wrong. The first appellant who was the plaintiff alienee of the

properties comprised in Schedule 1 to the plaint sued for partition and separate possession thereof, impleading the two sons of the late

Chokkalinga Nadar and his two widows as well as some alienees. A preliminary decree for partition was passed on 26th November, 1954, by

compromise. The application for passing a final decree was made on 30th July, 1960 and 8th December, 1960. The Subordinate Judge took the

view that the application was out of time and dismissed it. Curiously he also dismissed the suit.

The reason for the order of the Court below is based on clause 3 of the preliminary decree which is:

That the parties shall be at liberty to apply for final decree but since the subject-matter of the several items of properties which are in the

possession of various defendants herein is also the subject-matter of the two appeals against the decrees of this Court in O.S. No. 149 of 1951

and O.S. No. 74 of 1952 pending before the High Court, the parties shall apply for a final decree after the result of the said two appeals and that if

the two appeals are not disposed of within three years from this date the parties be at liberty to apply for final decree so as to be in time.

The Subordinate Judge thought that the application for final decree should have been filed at least within three months of the disposal of appeals on

2nd August, 1957. There is something to be said in support of this interpretation. But what the Subordinate Judge completely overlooked was that

an application for passing a final decree in a partition suit is not in execution but in a pending suit and as such any number of applications for passing

final decree in parts are permissible. Neither Article 136 nor Article 137 in the present Limitation Act nor the corresponding articles in the repealed

enactment would apply to applications for passing final decrees. This position is so well settled that it is hardly necessary to refer to any authority.

The Subordinate Judge was also wrong in dismissing the suit itself without appreciating its implications. The Court of the Subordinate Judge itself

has passed the preliminary decree and it was entirely beyond its power, therefore, to dismiss the suit which would have the effect of nullifying the

preliminary decree.

The appeal is allowed and the order of the Court below is set aside. The application for passing final decree will be restored to its file and be

disposed of according to law. No costs.