Pulla Madduleti Reddi vs Rahiman Bi, lunatic by Guardian, Hakim Sayed Kamaloddin (died) and Others

Satyanarayana Rao, J.—This appeal and the civil revision petition arise out of a suit for partition instituted by the legal representatives of the

daughters of one Rahman Sahib. Rahman Sahib had three daughters and two sons. The plaintiffs are the descendants of the daughters and they are

entitled to three-sevenths share in the estate of Rahman Sahib. The fourth defendant is one of the sons of Rahman Sahib and he died during the

pendency of the suit and his interests are represented by the 14th defendant, his son. Mahboob Sahib was the second son of Rahman Sahib ; he

died and his sons, defendants 1 to 3, were impleaded-as parties to the partition suit. In the suit the plaintiffs claimed division of 12 items of

property, items 1 to 12. Of these items the eastern portion of item 1 and the southern portion of item 6 were purchased by the fifth defendant on

the 10th July, 1935, under Ex. D-4 from defendants 1 to 3. When the suit was taken up for trial the plaintiffs abandoned their claim for partition of

items 2 to 5 and 10 which were claimed by defendants 1 to 3 as the self-acquired property of their father, Mahboob Sahib. The only contesting

defendant in the suit was the fifth defendant and he claimed that as he is a bona fide purchaser for value of the eastern half of item 1 and the

southern half of item 6, and that by way of adjustment of equities in the partition the interest purchased by him in items 1 and 6 should as far as

possible be allotted to the shares of defendants 1 to 3. The fourth defendant remained ex parte in the suit and after his death the 14th defendant, his

son, was impleaded as his legal representative. Though he appeared by a pleader he did not file any written statement claiming a division of his

share and allotment to him of properties. The learned Subordinate Judge who tried the suit upheld the contention of the fifth defendant and

provided in the preliminary decree that the fifth defendant should be entitled to equitable relief at the time of the final decree in conformity with the

finding on the fifth issue that the eastern half of item 1 and the southern half of item 6 in which he is interested shall as far as possible be allotted to

the shares of his vendors, defendants 1 to 3. The preliminary decree is dated 28th December, 1942. After this a commissioner was appointed, to

separate the three-sevenths shares of the plaintiffs and allot to them properties. He made a division and submitted a report enclosing the plans

showing the division of the properties made by him. The report was considered by the learned Subordinate Judge. As none of the parties filed

objections to the report he accepted the report and passed a final decree on nth October, 1943. There was no appeal against the final decree by

any of the parties to the suit. On 24th January, 1944, the plaintiffs filed M. P. No. 50 of 1944, u/s 151 of the Civil Procedure Code, requesting the

Court to re-open the partition which became final on the ground that when they went to take delivery of possession of the property as per the final

decree they found that there was no division inter se between the fourth defendant and the fifth defendant and that caused difficulty in obtaining

delivery of possession of property. This petition was opposed by the fifth defendant but all the same the learned Judge by his order dated 30th

March, 1944, directed the re-opening of the partition after vacating the final decree already passed by him and directed the appointment of a

Commissioner to make a fresh division. The only reason given by the learned Judge for his order is that the share of the defendants 1 to 3 was not

separated from the share of the fourth defendant. In this the learned Judge overlooked the fact that at no stage of the proceedings, neither the

fourth defendant nor his son, the 14th defendant, ever asked for a partition and separate possession of their share. The learned Judge has not given

any reason for vacating the final decree and he had no jurisdiction to re-open a decree which has become final u/s 151 of the Civil Procedure

Code. The law provides that a decree once passed except to the extent to which the Code gives the Court power to correct mistakes or

accidental slips could be vacated only either by way of an appeal or by way of a review. This method was not followed in this case and it is not

suggested, nor has it been found by the learned judge that there was any mistake or accidental slip in the proceedings before him.

After this order there was a fresh division by the Commissioner and a fresh report and on the basis of this report the learned Judge passed a

fresh final decree on the 1st July, 1944. On this occasion the matter came up for consideration before the District Judge and the learned District

Judge found in his judgment that he was not bound by the order passed by the Subordinate Judge in M.P. No. 50 of 1944, on 30th March, 1944,

and that, therefore, he could not do anything in the matter.

The fifth defendant has preferred C.R.P. No. 1157 of 1944, against the order on M. P. No. 50 of 1944, and appeal No. 241 of 1945 against

the second final decree. After the appeal was filed the first respondent (second plaintiff), the second respondent (third plaintiff) and the fifth

respondent (sixth plaintiff) died and their legal representatives were not brought on record within time. The appellant filed C.M.P. Nos. 4126 and

4127 and 4128 of 1946 in the appeal to have the delay in seeking to set aside the abatement excused, to have the abatement set aside and to

implead the legal .representatives of the deceased respondents. He made similar applications in the civil revision petition, C. M. P. Nos. 4129,

4130 and 4131 of 1946, for excusing the delay in seeking to set aside the abatement. C. M. P. Nos. 4126 of 1946 and 4129 of 1946 came up

for hearing before another Bench and they were dismissed on the ground that no sufficient cause was made out to excuse the delay. The petitions

for impleading the legal representatives were directed to be posted along with the appeal and the revision petition.

It was contended on behalf of the appellant on the strength of the decision in Perumal Pillai Vs. Perumal Chetty and Another, that when once

there was a preliminary decree made in a suit for partition there could be no abatement of the appeal and therefore in this case it cannot be said

that the appeal and the revision have abated by reason of the fact that the legal representatives of the deceased respondents were not impleaded in

time. We are unable to agree with this contention. The decision of the Full Bench is confined to a case where after a preliminary decree and after

determination of the rights of the parties by the preliminary decree a party dies and no legal representatives were impleaded in time, there could be

no abatement of the suit in such a case for the reason that rights had already become crystallized by the preliminary decree. The proceedings

therefore in such a case could go on to the stage of final decree. Here we are concerned with an appeal against the final decree after the rights have

not only been determined but worked out and embodied in the final decree. To such a case in our view the principle of the Full Bench in Perumal

Pillai Vs. Perumal Chetty and Another, does not apply. Nor does the language of Rule 21 of Order 22, CPC help the appellant in his contention.

All that the rule says is that wherever the words "" plaintiff or defendant "" occur in the application of the rules relating to abatement and impleading

of the legal representatives in a suit are concerned the "" plaintiff"" and the "" defendant"" should be read as "" appellant and respondent respectively.

The rule does not create an exception in the case of appeals against the final decrees in partition suits. In our view, therefore, the appeal abates and

has to be dismissed with costs.

This does not however result in our upholding the final decree. Though no doubt in the Civil revision petition also the legal representatives were

not impleaded in time, we think we have got a larger discretion in the matter of Civil revision petitions as the rules relating to the abatement

applicable to suits and appeals do not strictly apply to Civil revision petitions. In this case as stated already, the order of the learned Subordinate

Judge vacating the first final decree u/s 151 of the CPC is wholly without jurisdiction. Further, the petition, M. P. No. 50 of 1944, was filed by the

plaintiffs who had already secured their three-sevenths share in the suit property under the first final decree. They had really no grievance against

the final decree ; but, however, at their instance the final decree in the partition suit was reopened and a fresh final decree was passed. As the

order of the learned Subordinate Judge in M. P. No. 50 of 1944 is without jurisdiction that has to be set aside and consequently the final decree

which was passed in pursuance of it has also to be vacated. The result is that the first final decree will be restored and under it the plaintiffs have

already secured their three-sevenths share in the properties. If there is any obstruction by the fourth defendant''s legal representative, the 14th

defendant, it is for the Court to remove such obstruction and place the plaintiffs in possession of their share that was alloted to them under the first

final decree. We therefore allow Civil Revision Petition No. 1157 of 1944, and set aisde the order of the learned Subordinate Judge but in the

circumstances of the case the petitioner is not entitled to his costs.

C.M.Ps. Nos. 4128 and 4131 of 1946, will stand dismissed without costs.