Rama Shanker Dubey and Ors. vs Uma Shanker Dubey & Ors.

S.K. Phaujdar, J.—Learned counsel for both the sides are present. It is stated that respondent No. 1 is dead, but no substitution has been made. It is gathered that it was a partition suit and all the parties interested in the partition are already arrayed as plaintiffs or the defendants. Under these circumstances, substitution in this revision application may not be necessary for final decision of the present application.

At the instance of the present revisionists a suit for partition was filed concerning three properties in Uttar Pradesh and one in West Bengal. The trial Court recorded a preliminary decree in respect of the three properties in Uttar Pradesh but refused to allow partition of the West Bengal property. This order in so far as it concerns refusal of partition of the West Bengal property was challenged by the present plaintiff in this High Court in an appeal which fact is not disputed. The appeal, I am told, is still pending.

In the meanwhile the plaintiffs (present revisionists) moved an application before the trial Court for partition by metes and bounds of the three properties of Uttar Pradesh. An objection was taken by the present respondents who contended that the revisionist himself having challenged the preliminary decree, albeit for the West Bengal property, could not have claimed partition by metes and bounds for the rest of the three properties in Uttar Pradesh.

The court below, in my view, rightly approached the question and rightly opined that if the prayer could be allowed it would amount to preparation of a final decree and there could not be two final decrees in the suit as a part of the suit property was lying in appeal before the High Court.

The learned counsel for the revisionist relied upon a decision of the Karnataka High Court as reported in AIR 1978 Karnataka 76. In this case, the Hon''ble Court relied upon a decision of the Hon''ble Supreme Court and was of the view that there was nothing in the Code of Civil Procedure to prevent a civil court from preparing two preliminary decrees. The facts before the Karnataka High Court related to a partition in which a preliminary decree was prepared, but subsequently due to death of certain parties there was change in devolution of interest in between the parties. A prayer was made for recording a subsequent preliminary decree so that the parties may not be compelled to go for a second litigation to establish their rights with the change of devolution of interest.

There is a gulf of difference between a preliminary decree and a final decree and nothing in the C.P.C. conceives of two final decrees. The learned counsel for the respondents submitted that once, on the basis of the application of the revisionists, a partition is made of the properties of Uttar Pradesh, and in case their appeal is allowed, a further partition would be made of the West Bengal property also; whereas if there be a single final decree, it would be open for the parties to impress upon the Commissioner making the partition to retain the portion of the Property in his possession. Once the partition of the properties of the Uttar Pradesh by metes and bounds is made, me respondent would lose the opportunity as indicated above. There is much force in this submission also.

In my view, the final decree could be one and there cannot be a contingent final decree depending on the result of the appeal now pending before the High Court at the instance of the present revisionist. I must hold that the learned trial court has rightly dismissed the petition of the present revisionist. The present application under Section 115, CPC is accordingly dismissed. There will be no order as to costs.

Revision dismissed.