1. The principal question that arises for decision in this revision petition is whether the court which passed a preliminary decree in a suit for partition of properties including lands assessed to revenue, has competence and duty to take into account any compromise between the parties subsequent to such preliminary decree, and to pass a fresh decree in accordance with such compromise.
2. The respondent herein was the original defendant in O. S. No. 186 of 1925, a suit for partition, on the file of the Civil Judge, Junior Division, Hon-navar. A preliminary decree was passed in that suit. He made an application which was styled as a Darkhast application, praying that he might be given possession of a half share in the suit lands assessed to revenue and of 3/8th share in the timber and other materials out of the demolished suit house. The petitioner herein filed objections to that application, pleading, inter alia, that subsequent to the preliminary decree, a compromise was entered into between the parties, under which each was given certain lands and gave up his rights in other lands, and that in view of the compromise, the application was not maintainable.
3. The Civil Judge. (Junior Division) overruled the petitioner's objections, appointed a Commissioner for apportioning the respondent's 3/8th share in the building materials, and directed that the decree should be sent to the Collector for effecting the partition of lands assessed to revenue,
4. Against that order, the petitioner preferred an appeal to the Civil Judge, Karwar, who dismissed the appeal. Feel-ing aggrieved, the petitioner has come up in revision.
5. Mr. T. S. Ramachandra, learned counsel for the petitioner, urged that when the petitioner pleaded that a compromise was entered into between the parties subsequent to the preliminary decree, the learned Civil Judge, (Junior Division) should have enquired whether there was such a compromise and if he was satisfied that there was a lawful compromise, he should have made a decree or order in accordance with it. Mr. Kama chandra contended that without deciding first whether there was a compromise, it was not open to the learned Civil Judge, (Junior Division), to send the decree to the Collector under Order 20, Rule 18 C.P.C. and to appoint a Commissioner for apportioning the building materials.
6. The rival contention of Mr. K. L. Bhatta, learned counsel for the respondent, was that after the preliminary decree was made in respect of lands assessed to revenue, the learned Civil Judge, (Junior Division), became functus officio and could not go into the question whether the parties had subsequently entered into a compromise. In support of his contention Mr. Ehatta referred to the following observations of this Court in Narasu v. Narayan, AIR 1959 Mys. 233 at p. 234:
'A decree passed under Rule 18(1) of Order 20 directing partition by the Collector cannot be said to be a preliminary decree. So far as Civil Courts are concerned it is final for all purposes, though the partition of property may remain to be effected by the Collector.....
The Court which passed a decree must be deemed to have become a functus officio after passing the decree.'
7. On the other hand, Mr. Ramachandra argued that even when the preliminary decree is in respect of partition of lands assessed to revenue, the court which passed that decree is competent to take into account subsequent developments like a compromise between the parties and to pass a fresh preliminary decree to accord with the altered situation. Mr. Ramachandra relied on the following observations of the Supreme Court in Phoolchand v. Gopal Lal, : 3SCR153 :
'We are of opinion that there Is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented .....
It would in our opinion, be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled andspecification of shares in the preliminary decree varied before a final decree is prepared. .....
So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so, and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. .....'
8. However, Mr. Bhatta argued that decrees for partition of lands assessed to revenue, form an exceptional category to which the general proposition laid down by the Supreme Court in the above decision will not apply and that in regard to that category of decree, the true legal position is as stated by this court in AIR 1959 Mys. 233, i.e., the court which passed such a decree was functus officio. It was also argued by Mr. Bhatta that any plea that parties have entered into a compromise subsequent to such decree, should be put forth before the Collector to whom the decree is sent for effecting the partition and not before the Civil Court that had passed such decree.
9. In AIR 1959 Mys. 233, the question that arose for determination was whether there is any period of limitation for making an application to the Civil Court praying that a decree should be sent to the Collector under Order 20, Rule 18 C.P.C. The question whether the Civil Court which made a preliminary decree is competent to pass another preliminary decree taking into account events that have happened subsequent to the passing of the earlier preliminary decree, did not arise up for consideration in that case. The observations of their Lordships to the effect that the Civil Court becomes functus officio after passing the preliminary decree, must be understood in the context of that case. In my opinion, these observations cannot be understood as laying down a proposition that a Civil Court which makes a decree for partition of lands assessed to revenue, has no competence to pass another decree, where subsequent developments call for a fresh decree.
10. Then it is pleaded that subsequent to the passing of a preliminary decree the suit has been adjusted wholly or in part by an agreement or compromise, under Order 23, Rule 3 C.P.C., it is the duty of the court to inquire whether there has been such a compromise or agreement and if it is proved, to pass a decree in accordance therewith. The view I have taken receives support from the following observations of a Bench of Madras High Court in Subrarnania v. Thangammal, : AIR1965Mad305 .
'We are therefore of the opinion that the court is competent to take into account the matters set out in the compromise, if the compromise is found to be genuine and binding on the parties and the court is entitled to embody it in a set of fresh directions for the purpose of passing a final decree, and the directions so issued should be construed as not an amendment to the preliminary decree already passed, but rather as a fresh preliminary decree, which it is open to the court dealing with a partition suit to pass at any time till the stage of passing the final decree is over.'
11. I do not see any reason why the mere circumstance that the decree relates to lands assessed to revenue, should make any difference and take away the competence of the court to consider the plea of compromise or agreement subsequent to the preliminary decree and to make a fresh decree in accordance with such compromise or agreement if the same is proved.
12. Mr. Bhatta has not shown any provision of law which confers on the Collector to whom a decree is sent under Order 20, Rule 18 C.P.C. jurisdiction to enquire whether the parties have entered into a compromise subsequent to the decree and to make a fresh decree in accordance with such compromise, if he is satisfied as to the existence of such compromise.
13. It was next contended by Mr. Bhatta that the petitioner has not made any application under Order 23, Rule 3 C.P.C., praying that a fresh decree should be made in terms of the alleged compromise, and that in the absence of such application the learned Civil Judge (Jr. Dn.) was not called upon to enquire into the alleged compromise and to pass a fresh decree, if the alleged compromise was proved.
14. Rule 3 of Order 23 does not provide that the court should exercise jurisdiction under that rule only when there is formal application by one of the parties to pass a decree in accordance with a compromise or agreement. When such compromise or agreement is pleaded by a party even by way of defence in a suit, I think, it is the duty of the court to proceed to enquire into the existence of such compromise or agreement and to pass a decree in accordance with it, if it is proved,
15. Lastly, it was contended by Mr. Bhatta that the compromise pleaded by the petitioner, even if established, would amount to an adjustment which had not been certified or recorded under Order 21 Rule 2 C.P.C., and that the same would not be recognised by the learned Civil Judge (Junior Division).
16. As pointed out by the Judicial Committee of the Privy Council in MadanTheatres v. Dinshaw & Co. , the prohibition contained in sub-rule (3) of Rule 2 of Order 21 C.P.C., applies only in execution and the execution does not begin until after a final decree is made. In the present case no final decree had been passed. In directing that the decree should be sent to the Collector (for effecting the partition of lands assessed to revenue) the Civil Judge (Junior Division) cannot be said to have been executing the decree, Hence there was no bar under sub-rule (3) of Rule 2 of Order 21, C.P.C., for the petitioner pleading the compromise.
17. The order of the learned Civil Judge, (Jr. Dn.) is unsustainable as he failed to consider the compromise pleaded by the petitioner, and the -judgment of the learned Civil Judge, Karwar, affirming that order is also unsustainable. In the result, this revision petition is allowed and the order and the judgment of the courts below are set aside and the respondent's application is remanded to the Munsiff (the corresponding authority to the Civil Judge, Jr. Dn.) at Honnavar to dispose of it afresh according to law,
18. In this petition parties will bear their own costs. Order accordingly.