Joginder Pal Kaur vs Gurdial Singh

J.V.Gupta, J.

This petition is directed against the order of the learned Senior Subordinate Judge, Faridkot, dated January 18, 1985, whereby the application for passing the final decree has been dismissed.

Earlier the decreeholder petitioners moved an application for passing the final decree which was dismissed on August 16, 1983, with the following orders:

``Present counsel for parties. This order shall be read in continuation of my order of 30.7.1983. Rs. 30/ as adjournment cost awarded against the applicant, not paid. No reason explained for this lapse. So, the petition is dismissed for nonpayment of adjournment costs. File be consigned. Announced. 16.8.1983.''''

Later on, the decreeholder moved another application for passing the final decree which was dismissed by the impugned order on the ground that it was not maintainable because the earlier application was dismissed under the provisions of Section 35B, Civil Procedure Code and it will bar a subsequent application for the same purpose.

After hearing the learned counsel for the petitioners, I am of the considered view that the application for passing the final decree could not be dismissed even if it be assumed that the earlier application was dismissed under Section 35B, Civil Procedure Code since it was a suit for partition in which preliminary decree has already been passed. As long as the property remained joint, the decreeholder was entitled to claim its partition. Even a separate suit subsequently for that purpose was not barred. It was held in Manohar Lal Behari Lal v. Onkar Das alias Onkar Dass and others, AIR 1959 Punjab 252, that there can be no doubt that an order under Order 9, Rule 8, Civil Procedure Code, cannot amount to res judicata for the simple reason that the suit cannot be deemed to have been heard and finally decided by means of this order. The only effect of an order passed under Order 9, Rule 8 is that a fresh suit based on the same cause of action is barred by the provisions of Order 9, Rule 9. However, a suit for partition dismissed for default under Order 9, Rule 8 does not bar a subsequent suit for partition. The reason is that the right to enforce a partition is a continuous right which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues.

In the circumstances, the petition succeeds and the impugned order is set aside. The Court is directed to proceed with the application for passing the final decree in accordance with the application for passing the final decree in accordance with law. The petitioners have been directed to appear in the trial Court on September 3, 1985. No costs.