S. Barman, J.
1. The question, -- whether a final decree, in a partition suit, against dead persons (who Were defendants in the suit) is a nullity, -- is the main point involved in this Misc. Appeal filed by the defendant, against an order of the learned Subordinate Judge, Cuttack, whereby he dismissed the defendant's petition, under Order 9, Rule 13 Civil Procedure Code, for setting aside the final decree passed in the partition suit.
2. The facts are few and simple. On August 10, 1949 a preliminary decree for partition was passed in the suit. On April 24, 1950 an application tor final decree in the partition suit was filed. Thereafter some defendants died, -- defendant No. 4 died on November 18, 1950 and defendant No. 1 on August 26, 1954. On December 15, 1954 a final decree was passed in the said Partition suit, without bringing on record the legal representatives of the said two deceased defendants. On October 18, 1957 the defendant (appellant herein) made an application, under Order 9, Rule 13 Civil Procedure Code, for setting aside the said final decree passed in the partition suit. The trial Court dismissed the said application and accordingly the final decree was allowed to stand. Hence this Misc. Appeal,
3. The only question, for consideration, is whether the final decree, passed in the partition suit, against the said dead persons, is null and void. None of the decisions, -- relied on by the trial court or those cited in course of hearing of the appeal, --are on the point. The decisions, cited, relate either to mortgage suits or suits for declaration of title some of those decisions are on the question of abatement of the suit. These cases are not decisions on the point, in issue, in the present appeal.
The point, accordingly, has to be decided on the basic principles, on which preliminary and final decrees are passed in a partition suit. Order 20, Rule 18 Civil Procedure Code, providing for decree in suit for partition of property or separate possession of a share therein, lays down that the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree, declaring the rights of the several parties, interested in the property, and giving such further directions, as may be required.
Thus, a partition suit, -- in which a preliminary 'decree has been passed, -- is still a pending suit, and the rights of the parties, who are added after the preliminary decree, have to be adjusted at the time of the final decree. This makes it clear, that, :at the stage of final decree, when the rights of the parties have to be declared, opportunities should be given to the legal representatives of the deceased parties to agitate their rights. In case there be any controversy as to such rights, it is at this stage that it is open to them to present their case, before the final decree is passed.
This view is further supported by the provisions of Order 26, Rules 13 and 14, Civil Procedure Code. Rule 13 provides to the effect that where a preliminary decree for partition has been passed, the Court may issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such preliminary decree. Then Rule 14 provides for the procedure of the Commissioner. Sub-rule (2) of Rule 14 makes it clear that, -- after the Commission prepares and signs a report, appointing the share of each party and distinguishing such share by metes and bounds, -- the parties may file objections to the report of the commissioner, and that the Court after hearing any. objections which the party may make to the report shall confirm, vary or set aside the same.
Thus, the law expressly provides that sufficient opportunities must be given to the parties to file objections to the report of the Commissioner, before the final decree is passed. In the present case, the two defendants having died before the final decree and their legal representatives having not been brought on record as substituted defendants, there remains nobody to file objections, if one so desired, in the place of the deceased defendants, because their legal representatives are not on record.
It is clearly against natural justice that the rights of the parties should be adjudicated in their absence or, after their death in the absence of their legal representatives, thus depriving them of the opportunity to place their case on their rights or file any objections, if any, to the report of the Commissioner. This reasoning, on the basic principles as clearly explained by Mr. M. S. Rao, learned counsel for the appellant, is convincing.
4. Mr. Naba Kumar Das, learned counsel for the defendant No. 5 (one of the respondents herein), took up a point that the appellant's application, under Order 9, Rule 13, Civil Procedure Code, for setting aside the final decree, was barred by the principles of res judicata, by reason of the defendant petitioner's having previously filed an objection, on the same allegations. In support of his contention, the learned counsel relied on certain decisions. But in none of these cases cited by him, has the final decree been attacked as having been made against dead persons. This, by itself, is a distinguishing feature, which makes all the decisions, cited before me, inapplicable, on the facts and circumstances of the present case. This disposes of the point on res judicata urged on behalf of one of the respondents.
5. In view of my findings, -- that the final decree passed in a partition suit against deceased person is a nullity, -- the decision of the learned Subordinate Judge is set aside. I accordingly, direct the case to go back to the learned Subordinate Judge, for passing a legal final decree, after substitution or legal representatives of the deceased defendants and also after hearing all objections, if any, -- all, according to law. The result, therefore, is that thus appeal is allowed with costs.