Andhra Pradesh High Court - Amravati
Order vs Section 115 Of Code Of Civil ... on 27 June, 2023
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.141 of 2021
ORDER:
Plaintiff in the suit filed this Civil Revision Petition under
Section 115 of Code of Civil Procedure (C.P.C.) assailing the
order dated 18.11.2019 of learned Principal Senior Civil Judge,
Rajampet in I.A.No.33 of 2019 in I.A.No.116 of 2008 in O.S.No.5
of 2002. Respondents herein are the defendants in the suit.
2. Despite notices being served, none entered appearance for
respondents.
3. Learned counsel for revision petitioner argued the matter
and cited legal authorities.
4. Point that falls for consideration is:
"Whether the learned trial Court failed to exercise
jurisdiction vested with it and whether the impugned order
suffers from illegality or material irregularity requiring
interference?
5. Point:
Smt. G.Anasuya Devi, revision petitioner filed O.S.No.5 of
2002 as against five defendants seeking for partition and
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C.R.P.No.141 of 2021
separate possession of the plaint schedule properties into five
equal shares and to allot one such share to the plaintiff and put
her in separate possession and enjoyment of her share taking
into consideration good and bad qualities by metes and bounds
and for costs. The suit was contested, necessary issues were
settled and evidence was adduced on both sides. After
considering the submissions and the material on record, by a
judgment dated 29.06.2006 the learned Senior Civil Judge,
Rajampet allowed the prayer and directed to pass a preliminary
decree and declared that the plaint schedule properties shall be
divided into five equal shares and allotted one such share to the
plaintiff. Subsequently I.A.No.116 of 2008 was filed by the
plaintiff seeking for division of properties by metes and bounds
and pass a final decree. On 25.07.2016 the said application
was dismissed for non-prosecution. To set aside that dismissal
order, the plaintiff intended to file an application under Order IX
Rule 9 C.P.C. and to file such application, there was delay of
789 days and therefore, the plaintiff filed I.A.No.33 of 2019
under Section 5 of the Limitation Act seeking to condone the
delay.
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C.R.P.No.141 of 2021
6. It is that I.A.No.33 of 2019 filed under Section 5 of the
Limitation Act that was enquired into by the learned Principal
Senior Civil Judge, Rajampet and finally the learned trial Court
dismissed the petition stating that the delay in presenting the
other applications was not properly explained and since there
was no sufficient cause shown it refused to condone the delay
and accordingly dismissed the petition. It is that order which is
challenged here.
7. It is already noticed that the prayer in O.S.No.5 of 2002
consists of relief of partition and relief of division by metes and
bounds and relief of delivery of possession of that share to
which the plaintiff is entitled to. By the judgment dated
29.06.2006 the learned trial Court declared the rights of the
parties and determined the share to which the plaintiff was
entitled to and it ordered for partition of the property. The said
judgment directed for passing a preliminary decree and a
preliminary decree was accordingly passed. The remaining part
of the relief made in the plaint with reference to division of
properties by metes and bounds and delivering the possession
of the share of plaintiff could not be completed while the
judgment for partition was passed and thereby there was a legal
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need to take up that task of division of properties by metes and
bounds. Thus, while the prayers of the plaintiff were approved
to be correct, the trial Court had to take up the task of division
of properties by metes and bounds suo motu by itself or on a
separate application of parties. That separate application is in
I.A.No.116 of 2008 whereunder the plaintiff sought for final
decree. It is during the final decree proceedings, the Court
assigns the task of division by metes and bounds to an advocate
commissioner who in turn could execute the warrant assigned
to him and divide the properties by metes and bounds and file a
report enabling the trial Court to draw up a final decree and
engross it accordingly. The suit continues to be pending until
the properties are divided by metes and bounds resulting in
passing a final decree. Thus, I.A.No.116 of 2008 was an
application in a pending suit. It was that application which was
dismissed for default. The plaintiff was entitled to file another
application for passing final decree. However, the plaintiff
thought of getting the dismissal for default order set aside and
in taking up such endeavour she found there was delay and
filed an application under Section 5 of the Limitation Act. In the
true purport of law applications during pendency of the suit do
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C.R.P.No.141 of 2021
not require any applications under Section 5 of the Limitation
Act. Yet, on a wrong advice the plaintiff had moved I.A.No.33 of
2019 under Section 5 of the Limitation Act and the learned trial
Court pedantically approached the matter and dismissed it. It
is in this regard one has to consider the most fundamental
principles laid down by the Hon'ble Supreme Court of India in
Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita
Saran Bubna1. In this instructive judgment, the Hon'ble
Supreme Court of India held that a petition for final decree is a
petition in the suit. Suit still continues to be pending till the
final decree is passed. Passing a final decree is the duty of the
Court which passed the preliminary decree. An application filed
by a party praying the Court to pass a final decree is essentially
an application to remind the Court of its duty and it is not an
application with a specific prayer based on any cause of action.
An application seeking to pass a final decree can be made by a
party at any time and the Limitation Act, 1963 has not provided
any period of limitation. The purport of this ruling is that if an
application for final decree could be filed without any period of
limitation and when such an application stood dismissed for
(2009) 9 SCC 689
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C.R.P.No.141 of 2021
default, there could be no period of limitation for a party in
asking the Court to set aside the default order. This becomes
very much clear since the party is entitled to move final decree
petition any number of times. The learned trial Court failed to
comprehend that it only passed a preliminary decree and it has
a duty to pass a final decree and it was only on passing a final
decree the relief in the suit stands accomplished. It is in the
above referred circumstances, the impugned order cannot be
sustained as the learned trial Court failed to exercise
jurisdiction vested with it. Therefore, point is answered in
favour of the petitioner.
8. In the result, this Civil Revision Petition is allowed. The
impugned order dated 18.11.2019 of learned Principal Senior
Civil Judge, Rajampet in I.A.No.33 of 2019 in I.A.No.116 of 2008
in O.S.No.5 of 2002 is set aside. There shall be no order as to
costs.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_____________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 27.06.2023
Ivd
Dr. VRKS, J
C.R.P.No.141 of 2021
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.141 of 2021
Date: 27.06.2023
Ivd
