Murugan vs Chidambaram Pillai and others

The plaintiff in O.S. No. 14 of 1953, on the file of the District Munsif, Ambasamudram, is the appellant in this Second Appeal. Defenndants 1,

4, 9 and 10 in the suit are the respondents in this Second Appeal. In view of the limited scope of the controversy that requires resolution in the

Second Appeal, there is no need to traverse upon the detailed facts of the case. Suffice it to state, the suit is one for partition and the preliminary

decree; the subject matter of final decree application; is one passed by the District Court, Tirunelveli in A.S. No. 166 of 1954 on 22-11-1954,

and that has been confirmed by this Court in S.A. No. 210 of 1955 on 19-9-1957. When the plaintiff took out I.A. No. 749 of 1977 to pass a

final decree for partition in terms of the preliminary decree, a question of limitation was raised by the defendants and that has been countenanced

by the two Courts below. Thus faced with an order of dismissal of the final decree application, the plaintiff has come before this Court by way of

the present Second Appeal. At the time of the admission of the Second Appeal, this Court deemed it fit to formulate the following substantial

question of law for consideration:

Whether the application filed for the passing of the final decree is barred by limitation?

The defendants wanted to say and before me, they do say that as per clause (ii)(b) of the preliminary decree ultimately passed ""the plaintiff

should pay the ninth defendant a sum of Rs. 5500/- as a condition precedent to get possession of one-half share of the properties in the plaint

schedule"", and this clause must be construed only as a final decree, and admittedly the condition precedent regarding payment of Rs. 5500/- was

not fulfilled before filing the present application, which must be treated as an application for execution, and the same has got to be dismissed as

barred by limitation. This stand of the defendants has been, in substance, countenanced by the two Courts below, though there is a difference in

their reasonings. The propriety of the view of the two Courts below is being questioned before me in this Second Appeal by Mr. M. Balachander,

learned Counsel for the plaintiff. Learned Counsel for the plaintiff would say that clause (ii)(b) of the preliminary decree, ultimately passed should

not be viewed dissociated from the nature of the lis, which is one for partition and the other clauses in the preliminary decree, and if so construed

there could be only insistence for payment of the sum of Rs. 5500/- before the plaintiff asks for and gets possession of his one-half share, which

could happen only after a final decree is passed effecting division by metes and bounds; and then if there is a failure on the part of the plaintiff to

comply with the condition regarding payment as per Cl. (ii)(b) of the preliminary decree, he could not get possession of his half share. As against

this, Mr. M. Chinnachamy, learned Counsel appearing for the ninth defendant, supported by Mr. S. S Sundar, learned Counsel appearing for the

tenth defendant, says that clause (ii)(b) of the preliminary decree ultimately passed must be construed only as a final decree and an executable one

and if so construed, there is a time limit for execution and that time limit having passed, the present application must he thrown out. Learned

Counsel for defendants 9 and 10 place reliance on a pronouncement of a Bench of the High Court of Allahabad in Lalta Singh Vs. Bhagwati

Prasad Singh and Others, .

Clause (ii)(b) of the preliminary decree ultimately passed is unambiguous in its terms. It only speaks about the payment of Rs. 5,500/- by the

plaintiff to the ninth defendant as a condition precedent for the plantiff getting possession of his one-half share in the properties in the plaint

schedule. That event, namely, the plaintiff getting into possession of his one-half share shall not and cannot happen, unless his one-half share is

divided by metes and bounds. Division by metes and bounds could be done only in the final decree application. Admittedly there is no division by

metes and bounds. It is only towards that end. the present application has been taken out. After division by metes and bounds takes place and a

final decree is passed; the plaintiff cannot get possession of his one-half share unless and until he pays the sum of Rs. 5,500/- to the ninth

defendant. But, the preliminary decree ultimately passed as such has got to be effectuated by the passing of a final decree thereon. In this

connection, the Court must take note of clause (ii) of the preliminary decree, which says,

That the plaintiff is entitled to one-half share and the ninth defendant to the remaining half share in the plaint schedule properties.

Clause (ii)(a) speaks about the entitlement of the parties regarding shares, and clause (ii)(b) speaks about the plaintiff getting into possession of his

one-half share. The plaintiff getting into possession of his one-half share would arise only after the same is demarked pursuant to division by metes

and bounds which should be done in the final decree application. It is not possible to construe clause (ii)(b) as an independent clause straightway

executable.

After the preliminary decree is passed and pursuant thereto, the plaintiff, if he desires an absolute and exclusive possession of his specific one-

half share, could only apply for the passing of a final decree, to effectuate separation of that one-half share of his. That is exactly what :he plaintiff

has done here. It is well settled that in a suit for partition, there is no limitation for filing a final decree application and any number of final decree

applications could be filed until the suit is finally disposed of; and by the mere passing of the preliminary decree, the suit is not disposed of. The

application for the passing of a final decree in a suit for partition is not in execution. This proposition of law as such is not being disputed by learned

Counsel for defendants 9 and 10 and, in fact, that has been adverted to by the two Courts below and yet they chose to act besides the same,

because in their view clause (ii)(b) of the preliminary decree ultimately passed, is an independent one straighway executable. Such a construction

and view are fallacious and totally untenable, as per my discussion supra. If this is the conclusion, which I could reach and I do reach that

conclusion, certainly it is not possible to bring in a theory of limitation to throw out the final decree application. Further, Mr. M. Balachander,

learned Counsel for the plaintiff, on being asked as to whether his client will make the deposit as per clause (ii)(b) to show his bona fides, has

today made an endorsement as follows, on the memorandum of grounds of this Second Appeal:

The appellant is ready to deposit Rs. 5,500/- as per decree in A.S. No. 166 of 1954, District Court, Tirunelveli dated 22-11-1954 as per

directions of Court.

The above endorsement could be taken note of, while disposing of the Second Appeal. However, learned Counsel for defendants 9 and 10 would

submit that in case there should be a failure to make the deposit as undertaken by the learned Counsel for the appellant in the endorsement,

referred to above, within a time to be given by this Court, this Court must direct the dismissal of the final decree application. Mr. M. Balachander.

learned Counsel for the plaintiff, in answer, submits that the proper stage for paying the ninth defendant, as per clause (ii)(b) would strictly arise

only after the passing of the final decree and when execution of the same is sought for and only to show the bona fides of his client, the plaintiff, the

above endorsement has been made and nothing more, and this Court should not foreclose the issue by prescribing any further condition, as now

asked for by the learned Counsel for defcndants9 and 10. In my view, taking note of the endorsement, referred to above, it is enough, if a direction

is given to make the deposit within a particular time and the implications of failure to make the deposit within the time can be examined if a

contingency therefore arises leaving the parties to approach this Court for appropriate direction at the appropriate time.

Accordingly, this Second Appeal is allowed in the following terms :

(1) The judgments and decrees of the Courts below are set aside.

(2) The final decree application I.A. No. 749 of 1977 in O.S. No. 14 of 1955 on the file of the District Munsif, Ambasamudram shall stand

restored to his file; and he shall prosecute further proceedings on merits in it.

(3) The plaintiff shall deposit the sum of Rs. 5,500/- within a period of three months from today before the District Munsif, Ambasamudram, to the

credit of O.S. No. 14 of 1953, as undertaken by the learned Counsel for the appellant as per the endorsement, extracted supra in this judgment.

(4) The prosecution of further proceedings on merits by the District Munsif, Ambasamudram in I.A. No. 749 of 1977 in O.S. No. 14 of 1953

shall be taken up; on the plaintiff making the deposit as per clause (3) supra.

(5) If there is a failure on the part of the plaintiff to make the deposit as per clause (3) supra, the parties are at liberty to approach this Court for

appropriate direction.

I make no order as to costs.

Order accordingly.