(1) This Civil Revision Petition, raises an interesting question under Order XX, Rule 18(1) of the Code of Civil Procedure under the following circumstances :--The petitioner instituted O.S. 133/49-50 against the respondents for partition and possession of his share of the joint family property. A preliminary decree came to be passed in his favour on 22nd January 1951. It reads as follows :--
'It is ordered and decreed that the plaintiff is entitled to 1/4th share in the suit schedule properties and is directed to take possession of his share of the properties from the defendants. The defendants are directed to pay past the mesne profits of 3 candies of ragi and 15 kilograms of avarage or their value of Rs. 120/- with costs and mesne profits from the date of suit till the date of delivery of possession will be ascertained in an application under Order XX rule 12 C.P.C. A preliminary decree with three months' time is drawn up.
It is further ordered and decreed that the defendants do pay to the plaintiffs the sum of Rs. 25-1-10 being the amount of costs incurred in this suit as by memorandum annexed, with interest thereon at six percent per annum from this day upto the date of realisation.'
After this preliminary decree the plaintiff-petitioner filed an application on 30-6-1952 for a final decree praying, amongst other reliefs, for directing the division of the suit property into four equal shares and the defendants to deliver possession of one such share to the plaintiff. It appears from the certified copy produced by Mr. P. Subba Rao the learned Advocate for the respondents that after the issue of notices none of the defendants appeared and the Court passed an order 'Draw up F. D.'. This was on 30.6.1952. Nothing was done by the Court thereafter. The plaintiff again, filed an application on 17.10.56 for a final decree. It is not clear what orders were passed on that application. He, again, approached the Court on 28.8.1959 by an application in the suit and it was marked as I A No. 2 The plaintiff prayed for transferring the record and proceedings of the suit to the Collector for effecting a division by metes and bounds.
This application was opposed by the respondents on the ground that the preliminary decree did not contain any direction for transfer of the records and proceedings to the Collector and that the order for the drawing up of a final decree having been passed in 1952, the present petition of 1959 was barred by limitation. The respondents relied upon a decision of the Court of the Judicial Commissioner, Sind in Khan Mahomed v. Hemandas Pritamdas, AIR 1935 Sind 192 and upon a decision of this High Court in Laxman Minaji v. Narayana Appayya, 38 Mys L J 957 : (AIR 1961 Mys. 172). The Munsiff upheld their contention and dismissed the petition. The petitioner has challenged the correctness of this order passed by the Munsiff.
The learned Advocate appearing for the petitioner has submitted that a suit for partition of a family property continues to be pending on the file of the trial court until a final decree is passed after effecting a division by metes and bounds in terms of the shares defined by the preliminary decree and that the omission to give direction in the preliminary decree for transfer of record and the proceedings to the Deputy Commissioner to effect a division of the agricultural lands under Section 54 C.P.C. is merely a procedural matter which could be rectified by the trial Court at any time. On the other hand, the learned Advocate for the respondents has contended that an order for drawing up a final decree having been passed as early as on 30-6-1952, it should be deemed that the suit had come to an end and that the trial Court had become functus officio.
(2) I have quoted the terms of the preliminary decree in full and it is obvious that it does not contain any directions for transfer of the record and the proceedings to the Deputy Commissioner for effecting a division under S. 54 of the Code Order XX, Rule 18 which deals with the form of decree in a suit for partition of the property, lays down:-
'Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then (1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54;
(2) x x x x x'.
Sub rule (1) requires the trial court to provide for two matters, in the preliminary decree, viz., (1) it should embody a declaration of the rights of the several parties interested in the immovable property; and (2) it should also embody a direction that in respect of property assessed to payment of revenue to Government, the Collector or any officer deputed by him shall effect the division in accordance with the provisions of Section 54. In the present case the preliminary decree not only defines the shares of the parties but also quantified the past mesne profits which the defendants were called upon to pay the plaintiffs. It also contains a direction to the plaintiff ' to take possession of his share in the property from the defendants.'
This direction can be given effect to only after the property is actually partitioned. The obvious omission in the decree is that it contains no directions to the Collector to effect a division by notes and bounds in the lands under Section 54 of the Code Failure to embody such direction cannot effect the validity of the decree nor can such failure on the part of the Court make the decree inoperative. It is an established proposition of law that a suit for partition in which a preliminary decree has been drawn up continues to be pending on the file of the trial court until a final decree is drawn up in accordance with law. The trial Court can therefore pass, either suo motu or on an application by any of the parties, such order as is necessary, for giving effect to the preliminary decree to grant effectively to the parties all the reliefs they are entitled to thereunder.
In this connection mention may be made of a decision of the Judicial Committee of the Privy Council in Jadunath Roy v. Parameshwar Mallick ILR (1940) 1 Cal 255 in which it was held that a partition suit in which a preliminary decree has been passed is still a pending suit and the rights of parties who have been added after the preliminary decree have to be adjusted in the final decree.
(3)The next contention advanced on behalf of the respondents is that the petition filed in 1959 for transmission of the record and proceedings to the Deputy Commissioner is barred by limitation. There is no force in this contention. It must be observed that such a petition is not a petition for execution of a decree because there is no executable decree. It is a petition in a pending suit praying the Court to take the necessary steps for drawing up of a final decree after effecting a division in terms of the preliminary decree. The duty of drawing a final decree is that of the court and neither the Code of Civil Procedure nor the Limitation Act specifically provides for any application being made for drawing up a final decree. As was observed by a Division Bench of this Court in Narasu Bin Ningappa v. Narayan Krishnaji, 37 Mys. LJ 103 : (AIR 1959 Mys 233)-
'..............................sub-rule (1) of Rule 18 does not contemplate any application to be filed by the parties for sending the papers to the Collector. Any application filed before the Court which passed the decree to send the papers to the Collector to follow up its direction given under sub-rule(1) of Rule 18. No period of limitation is provided for such a reminder. In sending the papers to the Collector the court is not performing the judicial function not is it required to pass any judicial order. Its function is only ministerial and no appeal lies against an order sending the papers to the Collector under Order XX rule 18(1) C.P.C.'
It may be argued for the respondents that this was a case where the preliminary decree contained a direction for transfer of the division and that the principles might not apply to a case where such direction is absent in the preliminary decree. Such a contention would not be tenable in view of the fact that a partition suit, as laid down by the Privy Council, continues to be pending and it would be open to the Court to give effect to its decree by directing the records to be transmitted to the Collector. In Basavayya v. Guravayya, : AIR1951Mad938 a Full Bench of the Madras High Court had to consider the power of the Court which passed the preliminary decree in respect of matters which had been omitted by it. Though the question before the Court related merely to an omission in the preliminary decree for determination and award of the past mesne profits to the plaintiffs, their Lordships indicated the powers of the Court which passed the preliminary decree in the following terms :--
'..................The preliminary decree determines the moieties of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered and decided before an equitable final partition can be effected. Among them are the realisation of common outstandings, the discharge of common liabilities, the distribution of the profits of the properties realised pending the suit, either in cash or by allotment of property of requisite value, the grant of ovelty, the provisions of maintenance to parties entitled thereto, the allotment of lands on which improvements have been effected to the share who has improved them, the alienated lands to the share of the alienor and other similar matters. Even after the passing of the preliminary decree is to open to the Court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. Order XX rule 18 Civil Procedure Code does not prohibit the Court from issuing such directions after the stage of a preliminary decree. x x'.
The decision has been followed by the High Court of Orissa in Basu Behera v. Dombaru Behera, : AIR1954Ori223 and the Andhra Pradesh High Court in Venkata Subbaiya v. Veeraiyya, (S) : AIR1955AP172 . In view of these decisions I am of opinion that it is open to the trial Court, to give suitable directions and transfer the records to the Deputy Commissioner for effecting a division in terms of the preliminary decree.
(4) As regards the decisions cited by the learned Advocate for the respondents, the decision of the Court of the Judicial Commissioner, Sind in AIR 1935 Sind 192 cannot be considered to be good law as it is not consistent with the principles laid down by the Privy Council and the view taken by our own High Court in the cases referred to above. What the learned Judicial Commissioner laid down is that if there is no direction in the preliminary decree for transfer of the proceedings to the Collector, the decree becomes defective and that unless the plaintiff gets it rectified in appeal it would not be open to the trial Court to transfer the proceedings. The judgment does not contain reasons to support that view and it is difficult to understand why the Court should not proceed to perform a ministerial act of transfer of the records to the Deputy Commissioner. Such order for transfer does not alter or modify the rights of parties under the preliminary decree.
The law requires the Court to embody in the preliminary decree a direction for transfer of the proceedings for effecting a division of agricultural lands to the Deputy Commissioner and omission to embody such a direction cannot be invalidate a decree since it does not affect the rights of parties to the suits and is merely of a ministerial nature intended to give effect to the rights already adjudicated upon. So far as the decision of this High Court in 38 Mys. L. J. 957 : (AIR 1961 Mys 172), is concerned, it relates to a different matter which is not relevant for the purpose of this petition. In that case, the plaintiff produced the stamp-papers in court seven years after the court's order for drawing a final decree and filed an execution petition after the decree had been drawn up. The judgment debtor pleaded that the execution petition was barred by limitation and the court upheld that contention. This decision has no bearing on the facts of this case.
In the result, I allow the petition, set aside the order passed by the Munsiff and remit the proceedings to his Court for disposal according to law in the light of what has been stated above. In view of the peculiar circumstances of this case I direct the parties to bear their own costs of this Court.
(5) Petition allowed.