H.K. Mahadevamma and Others vs Kenchappanavara Lingappa and Others

K.N. Phaneendra, J.—The petitioners approached this Court seeking for a direction to quash the order dated 26.04.2014 in OS No. 61/1985 passed by the learned Senior Civil Judge and JMFC, Kudligi and virtually rejecting the application filed by the petitioners herein under Annexures F and G filed under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act R/w. Section 151 of CPC. Learned counsel for the petitioners brought to my notice that the Court in OS No. 61/1985 has adjudicated the rights of the parties allotting the shares to the plaintiff and defendants. The Court has also allotted 1st and 2nd defendants, together, 1/6th share in the suit schedule properties. It is also mentioned in the judgment passed by the trial Court dated 29.02.1988 that in respect of the shares of the defendants, which is determined, have got to be incorporated in the decree only after payment of the necessary Court fee as contemplated under Section 35 of the Karnataka Court Fees and Suits Valuation Act, 1958. Based on the said judgment of the trial Court, the parties particularly defendant Nos. 1 and 2 after conclusion of the entire litigation between the parties, appeared to have filed IA Nos. 2 and 3 before the trial Court, wherein, under IA No. 2 the petitioners have sought for permission to deposit the Court fee of Rs. 100/- as per the orders of the Court in the judgment and requested the Court to incorporate their 1/6th share in the preliminary decree in respect of plaint schedule properties in OS No. 61/1985 and under IA No. 3 seeking indulgence of the Court seeking 1/6th share of defendant Nos. 1 and 2 in the preliminary decree. The trial Court in OS No. 61/1985 after receiving two applications has not even cared to pass a detailed order considering the claim of the defendant Nos. 1 and 2. But in a very cryptic orders the trial Court has virtually dismissed the said applications, though it is not specifically stated. The Court has passed orders in the following manner "26.4.2014

Pltff. BVP

As F.D.P. 6/07 is decreed and order to draw final decree in terms of commissioner report.

O.S. 61/85 is already disposed by this Court. Hence, case closed."

The above said order does not refer anything about the prayer sought in IA Nos. 2 and 3, nor the affidavit is perused by the trial Court. The Court was also reluctant to look in its own judgment passed earlier which is preemptory order providing opportunity to the parties particularly defendant Nos. 1 and 2 to furnish the Court Fee to get their 1/6th share incorporated in the decree. If the trial Court would have looked into these materials on record, particularly in its own judgment passed earlier, it would have not passed such a cryptic order.

Be that as it may. Once the preliminary decree is passed permitting the rights of the parties, particularly in a partition suit to get their share incorporated in the decree after payment of the Court fee, there is no limitation period to pay such Court fee and get the share incorporated in the decree. This particular objection given to the defendants to the suit will not in any manner benefit the other parties or they will endure with anything out of the declaratory by the Court declaring the particular share of the particular defendant. Therefore, in my opinion, the other parties can have any grievance so far as the prayer sought for by the defendant Nos. 1 and 2 are concerned. In this contest, so far as limitation in filing the such application by the defendants to incorporate their share in the preliminary decree is concerned, it is placed note here on the decision of this Court in Narasu and Others Vs. Narayan Krishnaji and Others, in the case of Narasu and Ors. v. Narayan Krishnaji and Ors., wherein this Court after a detailed consideration of Order 22, Rule-18(1), has held that, Order 22, Rule-18(1) does not contemplate any application to be filed by the parties for sending the papers to the Collector. Any application to the Court, which passed the decree, to send papers to the Collector can only be considered as reminder. The Court follows its own direction given under Rule 18. No period of limitation is provided for such reminder, as the same is one contemplated by law. In sending papers to the Collector the Court is neither following any judicial order nor it required to pass any judicial order, it can only be described as ministerial. An application to Court to send papers to Collector is not execution of application. No appeal lives from the order passed on such application. Applying the above said principals to this case and also in the light of the submission of the learned counsel for the respondent bringing to my notice, any period of limitation is provided for such reminder to be given by the parties to incorporate their share in the preliminary decree. I also found none of the provisions prevent the parties to remind the Court to incorporate their share in the preliminary decree. As rightly observed in the above said clause, the Court is not adjudicating right of any parties nor it is functioning as a judicial Court for the purpose of passing any order. It is only implementing its own order already passed in the judgment. Therefore, I am of the opinion that the trial Court has committed serious error in not entertaining IA Nos. 2 and 3 and not incorporating the shares of defendant Nos. 1 and 2, by receiving the Court fee as ordered by the same Court earlier in the judgment. Under the above said circumstances, the petitioners succeed in this petition. Hence, the following:

The order passed by the Senior Civil Judge & JMFC, Kudligi dated 26.04.2014 is hereby set aside. Consequently, IA No. 2 and 3 filed by the petitioners herein, before the Senior Civil Judge & JMFC are hereby allowed and trial Court is directed to receive the Court fees from defendant Nos. 1 and 2 and incorporate their 1/6th share in the preliminary decree.

Petition is allowed.