If the preliminary decree passed in the present proceedings without complying with the provisions of Order 32 Rule 7(1) is not a nullity but is only voidable at the instance of the appellants, the question is; can they seek to avoid it by preferring an appeal against the final decree? It is in dealing with this point that the bar of Section 97 of the Code is urged against the appellants. Section 97 which has been added in the Code of Civil Procedure, 1908 for the first time provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree… Read More In a partition suit, Court has jurisdiction to amend shares suitably, even if preliminary decree has been passed
In AIR 1989 NOC 74 (Mad) (Krishnamurthi v. Gopal Gounder), Ratnam, J. considering a case of determination of mesne profits in the partition suit observed thus : — “In a suit for partition, the mesne profits with reference to the properties forming the subject-matter of the suit, and referable to the properties, eventually allotted to… Read More Determination of mesne profits in the partition suit
Variations or changes in the shares on account of death of party/parties and other developments after the decree affecting the rights and liabilities of the parties can be determined if necessary by passing further preliminary decree or if no complicated questions are involved, the matter can be decided in the final decree proceedings itself.
In Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992, reversing a decision of the Madras High Court in AIR 1956 Mad 413, Mudholkar, J. said (at p. 995) : “A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such… Read More Whether a preliminary decree is regarded as embodying the final decision of the Court passing that decree?
there is no obligation of a litigant to apply for final decree proceedings. As such there is no question of application of the limitation. … Read More What is the period of limitation for execution of preliminary decree for partition.
KEYWORDS:- PARTITION CASE-impracticability of partitioning- DATE:-DECEMBER 12, 2017 Appellant, having not challenged the preliminary decree, may challenge the final decree in Partition case SUPREME COURT OF INDIA S. Esabella Vs. C. Thankarajan [Civil Appeal No(S). 21804-21805/2017 arising from SLP (C) Nos.7476-7477 of 2015] KURIAN, J. 1. Leave granted. 2. The appellant has approached this Court… Read More S. Esabella Vs. C. Thankarajan [SC 2017 DECEMBER]
27.04.2017 In our opinion a preliminary decree for partition crystallizes the rights of parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings. Till partition is carried out and final decree is passed, there is no question of any limitation running against right to claim partition… Read More Venu vs Ponnusamy Reddiar (Dead) Thr. Lrs
21.03.2017 Partition suit-Preliminary decree⇒ in a suit for partition where preliminary decree is passed, at the time of passing of the final decree it was not open to the respondent to raise the contention that he was a tenant of the suit premises. Section 97 CPC specifically provides that where any party aggrieved by the… Read More T. Ravi & Another Vs. B. Chinna Narasimha & Ors. etc
13-05-2005 Partition Suit – Limitation ⇒ Merely because there is no direction by the Court to furnish the stamp papers for engrossing of the decree or there is no time limit fixed by law, does not mean that the party can furnish stamp papers at its sweet will and claim that the period of limitation provided… Read More Dr. Chiranji lal (D) by L.Rs. Vs Hari Das (D) by L.Rs.
The Scope of Limitation Act in Partition Suit… Read More The Scope of Limitation Act in Partition Suit