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Pulla Madduleti Reddi Vs. Rahiman Bi, Lunatic by Guardian, Hakim Sayed KamaloddIn (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1947)2MLJ587
AppellantPulla Madduleti Reddi
RespondentRahiman Bi, Lunatic by Guardian, Hakim Sayed KamaloddIn (Died) and ors.
Cases ReferredPerumal Pillai v. Perumal Chetti
Excerpt:
- central excise act, 1944.[c.a. no. 1/1944]. section 11: [p. santhasivam, a. kulasekaran & s. tamilvanan, jj] possession of property taken by bank under the securitisation & reconstruction of financial assets and enforcement of security interest act, 2002 - claim towards tax due priority - held, where the bank took possession of the property under section 13 of the s..r.f.a.e.s.i. act, it would be a secured creditor and would have precedence over crowns debt namely excise department in instant case, in the absence of specific provision of first charge in central excise act as well as customs act. generally, the dues to government i.e., tax, dues etc (crows debts) get priority over ordinary debts. only when there is a specific provision in the statute claiming first charge over the..........decree that the fifth defendant should be entitled to equitable relief at the time of the final decree in conformity with the finding on the fifth issue that the eastern half of item 1 and the southern half of item 6 in which he is interested shall as far as possible be allotted to the shares of his vendors, defendants 1 to 3. the preliminary decree is dated 28th december, 1942. after this a commissioner was appointed, to separate the three-sevenths shares of the plaintiffs and allot to them properties. he made a division and submitted a report enclosing the plans showing the division of the properties made by him. the report was considered by the learned subordinate judge. as none of the parties filed objections to the report he accepted the report and passed a final decree on.....
Judgment:

Satyanarayana Rao, J.

1. This appeal and the civil revision petition arise out of a suit for partition instituted by the legal representatives of the daughters of one Rahman Sahib. Rahman Sahib had three daughters and two sons. The plaintiffs are the descendants of the daughters and they are entitled to three-sevenths share in the estate of Rahman Sahib. The fourth defendant is one of the sons of Rahman Sahib and he died during the pendency of the suit and his interests are represented by the 14th defendant, his son. Mahboob Sahib was the second son of Rahman Sahib ; he died and his sons, defendants 1 to 3, were impleaded-as parties to the partition suit. In the suit the plaintiffs claimed division of 12 items of property, items 1 to 12. Of these items the eastern portion of item 1 and the southern portion of item 6 were purchased by the fifth defendant on the 10th July, 1935, under Ex. D-4 from defendants 1 to 3. When the suit was taken up for trial the plaintiffs abandoned their claim for partition of items 2 to 5 and 10 which were claimed by defendants 1 to 3 as the self-acquired property of their father, Mahboob Sahib. The only contesting defendant in the suit was the fifth defendant and he claimed that as he is a bona fide purchaser for value of the eastern half of item 1 and the southern half of item 6, and that by way of adjustment of equities in the partition the interest purchased by him in items 1 and 6 should as far as possible be allotted to the shares of defendants 1 to 3. The fourth defendant remained ex parte in the suit and after his death the 14th defendant, his son, was impleaded as his legal representative. Though he appeared by a pleader he did not file any written statement claiming a division of his share and allotment to him of properties. The learned Subordinate Judge who tried the suit upheld the contention of the fifth defendant and provided in the preliminary decree that the fifth defendant should be entitled to equitable relief at the time of the final decree in conformity with the finding on the fifth issue that the eastern half of item 1 and the southern half of item 6 in which he is interested shall as far as possible be allotted to the shares of his vendors, defendants 1 to 3. The preliminary decree is dated 28th December, 1942. After this a commissioner was appointed, to separate the three-sevenths shares of the plaintiffs and allot to them properties. He made a division and submitted a report enclosing the plans showing the division of the properties made by him. The report was considered by the learned Subordinate Judge. As none of the parties filed objections to the report he accepted the report and passed a final decree on nth October, 1943. There was no appeal against the final decree by any of the parties to the suit. On 24th January, 1944, the plaintiffs filed M. P. No. 50 of 1944, under Section 151 of the Civil Procedure Code, requesting the Court to re-open the partition which became final on the ground that when they went to take delivery of possession of the property as per the final decree they found that there was no division inter se between the fourth defendant and the fifth defendant and that caused difficulty in obtaining delivery of possession of property. This petition was opposed by the fifth defendant but all the same the learned Judge by his order dated 30th March, 1944, directed the re-opening of the partition after vacating the final decree already passed by him and directed the appointment of a Commissioner to make a fresh division. The only reason given by the learned Judge for his order is that the share of the defendants 1 to 3 was not separated from the share of the fourth defendant. In this the learned Judge overlooked the fact that at no stage of the proceedings, neither the fourth defendant nor his son, the 14th defendant, ever asked for a partition and separate possession of their share. The learned Judge has not given any reason for vacating the final decree and he had no jurisdiction to re-open a decree which has become final under Section 151 of the Civil Procedure Code. The law provides that a decree once passed except to the extent to which the Code gives the Court power to correct mistakes or accidental slips could be vacated only either by way of an appeal or by way of a review. This method was not followed in this case and it is not suggested, nor has it been found by the learned judge that there was any mistake or accidental slip in the proceedings before him.

2. After this order there was a fresh division by the Commissioner and a fresh report and on the basis of this report the learned Judge passed a fresh final decree on the 1st July, 1944. On this occasion the matter came up for consideration before the District Judge and the learned District Judge found in his judgment that he was not bound by the order passed by the Subordinate Judge in M.P. No. 50 of 1944, on 30th March, 1944, and that, therefore, he could not do anything in the matter.

3. The fifth defendant has preferred C.R.P. No. 1157 of 1944, against the order on M. P. No. 50 of 1944, and appeal No. 241 of 1945 against the second final decree. After the appeal was filed the first respondent (second plaintiff), the second respondent (third plaintiff) and the fifth respondent (sixth plaintiff) died and their legal representatives were not brought on record within time. The appellant filed C.M.P. Nos. 4126 and 4127 and 4128 of 1946 in the appeal to have the delay in seeking to set aside the abatement excused, to have the abatement set aside and to implead the legal .representatives of the deceased respondents. He made similar applications in the civil revision petition, C. M. P. Nos. 4129, 4130 and 4131 of 1946, for excusing the delay in seeking to set aside the abatement. C. M. P. Nos. 4126 of 1946 and 4129 of 1946 came up for hearing before another Bench and they were dismissed on the ground that no sufficient cause was made out to excuse the delay. The petitions for impleading the legal representatives were directed to be posted along with the appeal and the revision petition.

4. It was contended on behalf of the appellant on the strength of the decision in Perumal Pillai v. Perumal Chetti : (1928)55MLJ253 that when once there was a preliminary decree made in a suit for partition there could be no abatement of the appeal and therefore in this case it cannot be said that the appeal and the revision have abated by reason of the fact that the legal representatives of the deceased respondents were not impleaded in time. We are unable to agree with this contention. The decision of the Full Bench is confined to a case where after a preliminary decree and after determination of the rights of the parties by the preliminary decree a party dies and no legal representatives were impleaded in time, there could be no abatement of the suit in such a case for the reason that rights had already become crystallized by the preliminary decree. The proceedings therefore in such a case could go on to the stage of final decree. Here we are concerned with an appeal against the final decree after the rights have not only been determined but worked out and embodied in the final decree. To such a case in our view the principle of the Full Bench in Perumal Pillai v. Perumal Chetti : (1928)55MLJ253 does not apply. Nor does the language of Rule 21 of Order 22, Civil Procedure Code help the appellant in his contention. All that the rule says is that wherever the words ' plaintiff or defendant ' occur in the application of the rules relating to abatement and impleading of the legal representatives in a suit are concerned the ' plaintiff' and the ' defendant' should be read as ' appellant and respondent respectively.' The rule does not create an exception in the case of appeals against the final decrees in partition suits. In our view, therefore, the appeal abates and has to be dismissed with costs.

5. This does not however result in our upholding the final decree. Though no doubt in the Civil revision petition also the legal representatives were not impleaded in time, we think we have got a larger discretion in the matter of Civil revision petitions as the rules relating to the abatement applicable to suits and appeals do not strictly apply to Civil revision petitions. In this case as stated already, the order of the learned Subordinate Judge vacating the first final decree under Section 151 of the Civil Procedure Code is wholly without jurisdiction. Further, the petition, M. P. No. 50 of 1944, was filed by the plaintiffs who had already secured their three-sevenths share in the suit property under the first final decree. They had really no grievance against the final decree ; but, however, at their instance the final decree in the partition suit was reopened and a fresh final decree was passed. As the order of the learned Subordinate Judge in M. P. No. 50 of 1944 is without jurisdiction that has to be set aside and consequently the final decree which was passed in pursuance of it has also to be vacated. The result is that the first final decree will be restored and under it the plaintiffs have already secured their three-sevenths share in the properties. If there is any obstruction by the fourth defendant's legal representative, the 14th defendant, it is for the Court to remove such obstruction and place the plaintiffs in possession of their share that was alloted to them under the first final decree. We therefore allow Civil Revision Petition No. 1157 of 1944, and set aisde the order of the learned Subordinate Judge but in the circumstances of the case the petitioner is not entitled to his costs.

6. C.M.Ps. Nos. 4128 and 4131 of 1946, will stand dismissed without costs.


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