B.K. Mehta, J.
1. This revision application is directed against the order of Judge, City Civil Court, Ahmedabad, passed in Old jurisdiction Civil Suit No. 153 of 1946 rejecting Civil Miscellaneous Application No. 342 of 1972 filed by the petitioner-original plaintiff, praying that the said suit be taken on file and a final decree be passed therein after re-adjusting the claims of the petitioner and respondent No. 2 herein in view of the death of respondents Nos. 1 and 3 herein. The order in question has been made in the following circumstances:
2. The petitioner and respondent No. 2 are brothers. Respondent No. 1 and respondent No 3 are, respectively, father and mother of the petitioner and respondent No 2. The petitioner had filed a suit for partition of the joint family properties being Civil Suit No. 143 of 1946 against the respondents herein on 17th October, 1946 in the Court of Civil Judge (S.D.) at Ahmedabad. In the said suit, the petitioner claimed his 1/4th share in the joint family properties and prayed for possession of the property coming to his share. That suit was decided by the judgment and decree of September 19, 1949 pronounced by the learned Civil Judge (S.D.) Ahmedabad. The operative part of the judgment was in the following terms:
I pass a final decree as for the partition of the house and the family properties. No further inquiry is necessary to appoint a Commissioner in the suit as partition can be effected in execution proceedings.
For reasons not known, nothing was done by the parties after the judgment and order of the trial Court till the present civil miscellaneous application was moved before the City Civil Court at Ahmedabad by the petitioner. It should be noted that respondent Nos. 1 and 3 herein who happened to be; father and mother of the petitioner and respondent No. 2 died in 1966 and 1964 respectively. The petitioner by his present civil miscellaneous Application No. 342 of 1972 moved the City Civil Court for taking the original jurisdiction Civil Suit No. 14 of 1946 on the file and pass a final decree after re-adjusting the claims of the petitioner and respondent No. 2 in view of the death of their parents. The learned City Civil Judge on hearing the Advocates of the parties and considering the judgment and order of the Civil Judge (S.D.) was of the opinion that the decree passed was a final decree and nothing required to be done in the matter as prayed for by the petitioner, because the partition could have been worked out by metes and bounds in execution proceedings. He was also of the opinion that the question of re-adjustment of the shares could also be worked out similarly in execution proceedings. In that view of the matter, the learned City Civil Judge rejected the application of the petitioner by his order of 26th September, 1973. It is this order of the learned City Civil Judge, Ahmedabad, which has been challenged in this revision application before me.
3. Mr. Shevde, learned advocate, appearing on behalf of the petitioner raised the following two contentions:
1. The learned City Civil Judge was in error in treating the decree passed in the old jurisdiction Civil Suit No. 143 of 1946 by of Civil Judge (S.D.) Ahmedabad on September 19, 1949 as a final decree, inasmuch as further proceedings were required to be taken before the suit could have been completely disposed of and, therefore, the decree in question was a preliminary decree for all intents and purposes.
2. The learned City Civil Judge was in error in holding that re-adjustment of claims which was required to be made as a sequel to the death of the parents of the parties could be made in the execution proceedings, be cause the executing Court could not have gone behind the decree, if it was a final decree as held by the Court.
4. Mr. Shevde has, so far as respondents Nos. 1 and 3 are concerned, declared before me that their names be deleted since they have died long before the petitioner moved for passing the final decree. Accordingly, the names of respondents Nos. 1 and 3 are deleted.
5. In my opinion, the contentions of Mr. Shevde should clearly prevail. It is no doubt true, as pointed out by Mr. Desai learned advocate appearing on behalf of respondent No. 2, that the learned Civil Judge (S.C.) has in his judgment observed that he Was passing a final decree as, in his opinion, no further inquiry was necessary since the partition could be actually worked out in execution proceedings. It is equally true that under Order 20 Rule 12(2) of the Civil Procedure Code, Courts have a discretion in partition suits whether to pass a preliminary decree or a final decree, and it is not obligatory, as it is in mortgage suits, in partition suits on the Courts to pass a preliminary decree as a first step in the direction of granting a final relief. Nonetheless, the question remains, whether the decree, which has been passed in the present ease, is a preliminary decree or a final decree. The learned City Civil Judge has proceeded merely on the basis of the observation made by the learned Civil Judge (S.D.) Ahmedabad that he was passing a final decree as in his opinion no further inquiry was necessary and the portion could be worked out actually in execution proceedings. The very fact that the learned Civil Judge (S. D) has assumed and, therefore, observed that the partition could be worked out in execution proceedings clearly indicates that further proceedings have to be taken before the suit could be ultimately disposed of. A decree becomes a final decree only when the adjudication completely disposes of the suit. What has been done in the original suit in the case before me is merely to declare the shares of the parties and the learned Civil Judge (S.D.) has found and held that each of the parties, namely, the plaintiffs and defendants Nos. 1 to 3, has l/4th share in the joint family properties. But so far as the residential house was concerned, it is not disputed that the partition was not effected by metes and bounds and till the partition is worked out by metes and bound, it cannot be said definitely as to which property or which portion of the property goes to which party. The suit by the petitioner was for partition of the joint family properties on the ground that he was a coparcener having l/4th share in the property and for the actual possession of the property or the portion of property coming to his share. This question, as to which property or portion of the property would go to the share of the petitioner, has not been adjudicated upon in the judgment and decree which has been passed by the learned Civil Judge (S.D). in the original suit. To that extent the further proceedings have to be taken before the suit can be said to have been completely disposed of.
6. Mr. Desai on behalf of respondent No. 2 has invited my attention to the provision contained in Section 51 of the Civil Procedure Code, which deals with the powers of Court to enforce execution. It provides, so far as relevant for our purposes, that--
Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-,
(a) by delivery of any property specifically decreed;
(b) x x x x x x x
(c) x x x x x x x
(d) x x x x x x x(e) in such other manner as the nature of the relief granted may require;
Mr. Desai urged that Section 51(e) empowers the Court to execute decree in such manner other than those referred to in Clauses (a) to (d) of the said section as the nature of relief granted may require. In the submission of Mr. Desai, in a partition suit where final decree is passed straight way as to further inquiry might be necessary in a given case, the Court is fully empowered to execute such a decree by actually working out the partition by metes and bounds by appointing a Commissioner for that purpose. I am afraid this is too tall a submission which is worthy of acceptance. Mr. Desai has lost sight of the fact that the petitioner has prayed for the possession of the property or the portion of the property coming to his l/4th share he being a co-parcener of the joint family. The trial Court has two courses open to it in a suit for partition. It may pass a preliminary decree and appoint a Commissioner where it is of the opinion that further inquiry is necessary in the matter of partition. In that case, the Commissioner may work up the partition and submit his report to the Court for consideration, and the Court may after considering the objections of the parties and the report of the Commissioner pass a final decree, as it may think fit. The other course open to the Court in the partition suit is to pass a final decree where the Court is of the opinion that no further inquiry is necessary. That course legitimately can be adopted, if the circumstances are so eloquent that no inquiry is necessary for working out the partition by metes and bounds. I have not been able to appreciate how in the present case when the learned Civil Judge himself has felt that the partition would be required to be, worked out in execution proceedings, it could be said that no further proceedings were required to be taken to the matter. If further proceedings were required to be taken, and I think they were, the decree is a preliminary decree in view of the clear and explicit provision contained in Explanation to Section 2(2) of the Civil Procedure Code. The contention of Mr. Desai that the Court could have executed the decree in such manner other than those mentioned in Clauses (a) to (d) of Section 51 according to the requirement of the nature of the relief granted, cannot, in view of what is stated, be accepted. The relief of possession could be granted only when the partition by metes and bounds is worked out. I do not think that it can be successfully urged that the partition by metes and bounds can be worked out in execution proceedings, except where the circumstances are so eloquent, as per example a building may consist of four equal blocks. The very fact that the learned Civil Judge (S.D.) felt the necessity of working out the partition in execution proceedings clearly shows that some further proceedings were required to be taken in order to completely adjudicate upon the questions raised and the reliefs asked for in the suit. The decree in the present case, as contended by Mr. Shevde and rightly, could not have been executed because the executing Court could not have been able to deliver the possession of any specific portion to the petitioner nor the petitioner could have been able to ask for possession of any specific portion.
7. In Ramabhai Govind v. Anant Daji (1945) 47 B.L.R. 447, a question was posed before the Full Bench of the Bombay High Court, whether further proceedings on a decree in the form set out in Order 20 Rule 18(1) can take place when the decree or intimation of the decree has not been sent to the Collector and no steps were taken by a party to the decree within three years from the date of passing of the decree. On behalf of the appellant before the Full Bench, it was strenuously contended 'that a decree passed under Order 20, Rule 18(1) of the Civil Procedure Code was final decree for all intents and purposes, since nothing required to be done by the Court after directing the matter to be sent to the Collector for effecting partition of revenue paying agricultural land, and an application made for sending the papers to the Collector after a period of three years would be clearly time barred. While negativing this contention 'and holding that the application made to the trial Court for sending the papers to the Collector for effecting partition in pursuance of the decree passed under Order 20 Rule 18(1) of the Civil Procedure Code is not an application in execution and, therefore, not time barred under Articles 181 and 182 of the Indian Limitation Act, 1908, Mr. Justice Lokur, as he then was, delivering his leading opinion observed as under;.It is true that in Order XX Rule 18(1), of the Code of Civil Procedure, the decree is not expressly described as preliminary. But let us compare it with other decrees for partition in order to obtain an indication of its true nature. Sub-rule (2) has in such cases expressly empowered the Court to pass a preliminary decree where the partition or separation cannot be conveniently made without further inquiry. The preliminary decree would in such a case declare what share the plaintiff is entitled to, and the final decree would specify the particular properties which are to correspond to such a share and are to be made over to the decree-holder, if necessary by proceedings in execution.
Mr. Justice Lokur found support to his view that a decree passed under Order 20, Rule 18(1) is a preliminary decree from the Rules contained in Chapter 12 of the First Volume of the Civil Manual. He observed as under:
This view finds support in the instructions contained in the Civil Manual issued by this Court for the guidance of civil Courts. In Rule 1 in XII of the first volume of the Manual (at p 145, 1940 edition) preliminary decrees are divided: into two classes, those in which further action for final decrees is to be taken forthwith by the Courts suo motu without any application from a party and those in which subsequent proceedings for passing final decrees do not arise as a matter of course. The former are directed to be treated as pending and shown as such in the Monthly Returns and the records of such suits are to be retained in the original Court until final decrees are passed therein, while the latter are to be treated as disposed of and shown as such in the Monthly Returns and the records should be forwarded to the Record-keeper of the District Court and may be called for when - subsequently required. A partition decree under Order XX Rule 18(2) Is included in the former class of preliminary decrees and one under Order XX Rule 18(1) is included in the latter class, be it noted, of preliminary decrees. These instructions are being, followed ever since the Code of Civil Procedure of 1908 was enacted, and a partition decree, whether under Sub-rule (1) or under Sub-rule (2) is classed as a preliminary; decree.
Mr. Justice Weston in his concurring opinion did not think it necessary to find support for the proposition that a decree passed under Order 20 Rule 18(1) is a preliminary decree from the provisions of Civil Manual or from the wording of Order 26, Rule 13. In his opinion, the question posed before the Court could be answered more appropriately by referring to: Explanation to Section 2(2) of the Civil Procedure Code. Mr. Justice Weston observed as under:
Under the present definition of 'decree' in Section 2 of the Civil Procedure Code, a decree must be final or preliminary, or partly final and partly preliminary. It seems to me that a decree can be partly final and partly preliminary only when it deals with different matters in different ways, and that a decree of the part of a decree in the form provided for by Order XX Rule 18(1) must be either final or preliminary. While no doubt the wording of Order XXVI Rule 13 lends support to the view that such decree or part is preliminary, the question must be decided, if it is necessary to be decided, on the definition given in the Explanation to Section 2(2) of the Code.
Mr. Justice Weston, however, did not agree with Mr. Justice Lokur that a decree made under Order 20, Rule 18(1) was not a final decree. He, however, agreed with him that an application by a party to the Court to forward the papers to the Collector for effecting partition by metes and bounds is not an application in execution and there was no limitation prescribed therefor. Mr. Justice Rajadhyaksha agreed with Mr. Justice Lokur. However, in his opinion, irrespective of the nature of decree, there: was no bar of limitation to the application for the papers being sent to the Collector in order that he may carry out the directions given by the Court.
8. It is, therefore, clear to me that it would be only the contents of the decree which would decide whether a particular order possesses the quality of a decree, preliminary or final, or partly preliminary and partly final. The preliminary decrees mentioned in Order 20 are merely illustrations. Explanation to Section 2(2) of the Civil Procedure Code indicates the criteria for determining whether a particular decree is a preliminary decree or a final decree. In my opinion, therefore, the decree in question passed in the original suit by the learned Civil Judge (S.D.) Ahmedabad in 1949 was clearly a preliminary decree and though the learned trial Judge has described it as a final decree, since some proceedings were necessary to effectuate partition, I am of the opinion, that the decree in question is a preliminary decree and the learned City Civil Judge was clearly in error in holding that it was a final decree.
9. The learned City Civil Judge has also rejected the prayer of the petitioner for adjustment of shares which has become necessary as a result of the demise of respondents No. 1 and 3,- the father and mother of the parties herein. The learned City Civil Judge has rejected this prayer because in his opinion the adjustment can be made in the execution proceedings of final decree passed in the suit. Mr. Shevde made a grieve ance, that this could not have been done by the executing Court because if the decree in question was a final decree, the executing Court could not have in execution proceedings gone behind the decree and adjusted the shares. According to Mr. Shevde, the Court ought to have adjusted the shares in view of the subsequent events which have taken place after the pre liminary decree. I am of the opinion that Mr. Shevde is justified in his grievance which he had made against the learned City Civil Judge in so far as he directed the re-adjustment of shares in execution proceedings of the final decree.
10. In Phoolchand and Anr. v. Gopal Lal : 3SCR153 , a similar question arose before the Supreme Court. The appellant Phool chand had filed a suit in 1937 for partition of his l/5th share in certain properties mentioned in the schedule to the plaint. The defendants to the suit were Sohanlal, father of the appellant, Gopal Lal, brother of the appeal lant and Rajmal minor adopted son of Gokalchand (deceased) who was another brother of the appellant and Smt. Gulab Bai, mother of the appellant. A preliminary decree for partition was passed specifying the shares of the appellant and the four defendants mentioned above on August 1, 1942. However, a final decree could not be passed on the report of the Commissioner in terms of the preliminary decree, Sohan died on May 13, 1947 and soon after his widow Smt. Gulab Bai also died on November 22, 1947. Disputes arose about the shares allotted to these two persons. It appears that respondent Gopal Lal calmest that his father Sohan had made a will in his favour according to which he bequeathed all his properties to Gopal Lal. The appellant Phoolchand challenged the genuine ness of the will. As to the share of Smt. Gulab Bai, Phoolchand claims that she had executed a sale deed dated October 19, 1947 and registered on January 10, 1948 by which she sold all her share in movable and immovable properties which came to her by the decree of August 1, 1942 to Phoolchand. Gopal Lal, however, contended that Smt. Gulab Bai was not entitled to sell the share which she got in the ancestral property as she was a limited owner and therefore her share must be held to have devolved on Gopal Lal, Phoolchand and Rajmal. These disputes were brought before the Court so in after the death of Sohan Lal and Smt. Gulab Bai, but nothing was done for many years, On July 12, 1961, the Trial Court decided the dispute with respect to the shares of Sohan Lal and Gulab Bai. It came to the conclusion that the will had not been proved. It also upheld the sale deed in favour of Phoolchand appellant. In consequence the Trial Court re-distributed the shares indicated in the preliminary decree of August 1, 1942. The result was that the share of Phoolchand was increased from 1/5th to 1/2; the share of Gopal Lal was increased from 1/5th to 1/4th, and the share of Rajmal was increased from 1/5th to 1/4th. The Trial Court did not prepare another formal preliminary decree on the basis of the re-distribution of shares. The respondent Gopal Lal appealed to the High Court against the order re-distributing the shares. As he did not'file a copy of the decree with the memo of appeal since no formal decree was drawn, a contention was raised before the High Court that the appeal was not competent. In any case, it was urged before the High Court that no second preliminary decree could have been passed. The High Court negatived both the contentions. However, the High Court varied the order of the lower Court upholding the transfer effected by Gulab Bai in favour of Phoolchand. Phoolchand, therefore, carried the matter in appeal to the Supreme Court. Negativing the contention that there cannot be two preliminary decrees, Mr. Justice Wanchoo, as he then was speaking for the Court, observed as under in paragraph 7:
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 parlies are thereby augmented. We have already said that it is not disputed that in partition suits the Court can do so even after the preliminary decree is passed 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 and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the Court. So far therefore as partition suits are concerned we have no doubt that if an event transpired 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. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in there present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible and obviously this is so because tin High Courts have differed on the question we would prefer this view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute it should not be decided by the Court which passed the preliminary decree for it must .not be forgotten that the suit is not over till the final adjures is passed and the Court has jurisdiction to decide all disputes that any arise after the preliminary decree, particularly in a partition suit due to death of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion We therefore hold that in the circumstances of this case it was open to the Court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the Trial Court in the present case and thereafter the preliminary decree already passed was amended the decision amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High Court in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided, the decision amounts to a decree. We should however like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of the appellant.
11. The learned City Civil Judge, therefore, clearly acted illegally in rejecting the prayer of the petitioner for adjustment of the shares which was necessitated by the subsequent events of the demise of the father and mother of the parties hereto. Mr. Desai has, however, invited my attention to the decision of this Court (A.D. Desai, J.) in Kanji Harajibhai Gondalia v. Jivraj Dharamshi (1975) XVI G.L.R. 469. The question before the learned Single Judge was, whether the order of the Court on a preliminary issue amounts to a decree. The question arose because the trial Judge in that case though upheld the contention of the defendant that the statutory notice required for filing a suit for eviction under the Rent Control Act was not legal and, therefore, the plaintiff-landlord was not entitled to claim relief of compensation. This finding was made on a preliminary issue about the legality of the notice, and the order was passed as a result thereof. The trial Court, however, allowed the plaintiff in that case to proceed with the suit so far as his claim for vacant possession was concerned on the ground of arrears of rent. An appeal was preferred from the order of the trial Court on the preliminary issue. On the objection being taken in the appeal that the appeal was not competent as no copy of the decree was filed with the name of appeal, the plan tiff-land lord moved the trial Court for drawing decree by an application which was rejected by the trial Court. It was against that order that the plaintiff landlord came before the High Court. The learned Single Judge was of the opinion that having regard to the definition of 'decree' since the finding on preliminary issue and the order passed as a result thereof finally determined the rights of the plaintiff-landlord so far as the relief for possession was concerned, it would amount to a decree of the Court and the Court was bound to draw a decree accordingly. In that context, the learned Single Judge observed as under:
If a Court does not draw up a decree it cannot be said that the order of the Court by which rights of the parties are finally adjudicated upon is not a decree. There can be more than one final decree in a suit where two or more causes of action are joined together. There is no provision in the Civil Procedure Code which prevents the Court from passing two final decrees, if the circumstances of the case so require, vide Fatmabai w/o Hasim v. Abubakar Tarmahmed A.I.R. 1946 Sind. 58. The present suit is a composite suit-being a suit for possession and a suit for arrears of rent; and the issue between the parties with regard to possession of the suit premises is finally decided by the trial Court. Thus there is final adjudication on the issue of possession and this determination amounts to a decree within the meaning of Section 2(2) of the Civil Procedure Code. The impugned order of the learned trial Judge refusing to draw up a decree, therefore, is erroneous and the same is set aside. It is directed that the trial Court should draw up a decree in pursuance of the judgment and decision passed by it with respect to the claim for possession of the suit premises.
I have not been able to appreciate how this decision can be of any assistance to the cause which Mr. Desai is representing before me. The question before the learned Single Judge was entirely in different context. The present question, namely, whether the decree under challenge is a final decree or a preliminary decree was not there at all before the learned Single Judge. I am therefore, of the opinion that this decision is not at all applicable for purposes of determining the question which arises before me. In that view of the matter, therefore, I must set aside the order of the learned City Civil Judge rejecting the application of the petitioner to call for the record of the old case and to pass a final decree thereafter and for readjustment of the shares as a result of the demise of the parents of the parties hereto.
12. In the result, this revision application is allowed and the order rejecting the application of the petitioner is set aside. The matter should go back to the City Civil Court and it is directed that the City Civil Court should appoint a Commissioner to work out the partition by metes and bounds. The City Civil Court should also investigate into the matter of re-adjustment of claims and after considering and determining the rival claims of the parties should determine whether there is a necessity of readjustment of shares and how should they be readjusted and a second preliminary decree be passed, if necessary, re-adjusting the shares, after such determination. The City Civil Court on receipt of the report of the Commissioner and after considering the objections of the parties should pass a final decree as required by law. Rule is made absolute accordingly with no order as to costs.