V. Gopala Gowda, J.
1. This Civil Revision Petition is filed by defendant No. 6 aggrieved of the order passed by the Civil Judge, Sr. Dn. and JMFC, Pandavapura (in short called as the 'trial Court') on I. A. No. V in FDP No. 5/ 1999 dated 10-7-2000 and for setting aside the same.
2. The brief facts are narrated in this order to appreciate the rival contentions urged by the parties to find out as to whether the impugned order passed by the trial Court suffers from error in law, which warrants interference by this Court in O. S. No. 425/ 1989 filed by the plaintiff for partition and separate possession of the suit schedule properties. On the basis of the respective claim and the counter claim of the parties, the trial Court determined the rights of the parties which existed as on the date and passed preliminary decree in terms of Section 2(2) r/w Order 20 Rule 18 Sub-rule (2) of the Code of Civil Procedure. Against the said preliminary decree, the defendants filed R. A. No. 69/1992 under Section 96 of the Code of Civil Procedure. The First Appellate Court, formulated the points for its consideration, on the basis of the rival contentions urged by the parties and it has answered the points against the defendants and dismissed the Appeal on 20-3-1998 by confirming the Preliminary Decree, against which the defendants filed Regular Second Appeal No. 624/ 1998 before this Court. Since, the said second appeal was barred by limitation and therefore, an application was filed by the appellants therein seeking for condonation of delay in filing the said appeal. This court rejected the application for condonation of delay by its order dated 1-10-1999 and therefore, the preliminary decree passed in O. S. No. 425/1989 by the trial Court became final. Thereafter, the plaintiffs initiated proceedings for drawing up the final decree after complying with legal requirements as required under Order 20, Rule 18(1) r/w Section 54 of the Code of Civil Procedure. At that stage, Defendant No. 6 has filed an application under Sections 151. 152 and 153 CPC requesting the trial Court to amend the preliminary decree passed in the original suit and further prayed to declare that she is entitled to 2/7th share in the suit properties instead of 1/28th share. The said application was seriously opposed by the plaintiff inter alia contending that the application is not maintainable in law stating that she was married long back prior to Hindu Succession (Karnataka Amendment) Act, 1990 came into force with effect from 30-7-1994, and further stated that she had not pleaded for her enhanced share in the first appeal and second appeal proceedings and therefore, she is estopped from claiming her right under Section 6-A of the Act and for re-al- lotment of her share by way of correcting and amending the preliminary decree passed by the trial Court. The learned trial Judge. on the basis of the rival contentions urged by the learned Counsel for the parties has formulated the points for his consideration as to whether defendant No. 6 is entitled for enhanced share in the Joint family properties in view of the Hindu Succession (Karnataka Amendment) Act of 1990. The learned counsel appearing for the parties addressed arguments making their respective submissions on the aforesaid points. The trial Court after referring to various undisputed facts and considering the amended provision of Section 6-A of the Act referred to supra, which provision came into force with effect from 28-7-1994 and also referred to Section 322, definition of partition from Mulla's Hindu Law, Seventeenth Edition by Satyajeet-A-Desai at Page 515, has recorded its findings with its cogent valid reasons and answered the points against defendant No. 6 and rejected the application by passing the impugned order.
3. The correctness of the impugned order is questioned in this revision petition by the 6th defendant placing reliance upon the provisions of Section 6A of the Hindu Succession Act (Karnataka Amendment) Act. 1990 and the decision of the Supreme Court ;
; ; ;
; and also the decision of the
Supreme Court in support of the
proposition that nothing in the C. P. C. 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 the partition suits, after preliminary decree is passed, if some parties die and further that subsequent to the preliminary decree in a suit for partition, there has been either enlargement or diminution of the shares of the parties by reason of succession or subsequent purchases or by assignments of interest by whatever cause, the Court, before passing its final decree can and ought to go into the matter and grant a final decree in accordance with such subsequent devolutions to avoid multiplicity of suits and give complete and appropriate relief to all the parties. Further, the learned counsel for 6th defendant placed reliance upon other judgments in support of the proposition that the determination of the rights of the parties and passing the preliminary decree in a suit for partition will not operate as resjudicata in terms of explanation (IV) of Section 11 of CPC, if before the partition is completed on the basis of Preliminary Decree by drawing a final decree. The reliance placed upon the Full Bench decision of Madras High Court by the learned counsel for 6th defendant, wherein the said Court after considering the provisions of Expln. IV to Section 11 of CPC, has held that, if the plaintiff acquires fresh cause of action during pendency of the suit, he is bound to rely on new right in pending suit and the subsequent suit on fresh cause of action and therefore it is not barred by resjudicata. The said Full Bench judgment of the Madras High Court has been reiterated by the Division Bench of the Travancore-Cochin High Court in the decision reported in AIR 1952 Trav. Co. 976 referred to supra. The learned counsel has also placed reliance upon the judgment of the Supreme Court (S. Sal Reddy v. S.
Narayana Reddy) wherein the analogous provisions of Section 29A of A. P. Amendment to Hindu Succession Act as that of Section 6A of the Karnataka Amendment to Hindu Succession Act, was considered by the Supreme Court in the above said case at Paragraph 7 law has been succinctly laid down in that case by it holding that the preliminary decree passed by the trial Court after determining the rights existed on that date and declaring the shares of the parties do not bring about the final partition between them for binding the final decree on them an account of intervening events. Therefore, the learned counsel Sri V. K. Bhat submits that the findings recorded by the trial Court in the impugned order on I. A. No. V is contrary to the law laid down by the Apex Court, this Court, Full Bench decision of the Madras High Court, Division Bench decision of the Travancore-Cochin High Court, Orissa High Court, Calcutta High Court and other High Courts as referred to supra and as such the impugned order is vitiated in law, therefore, he has sought for setting aside the same and prayed for allowing the petition.
4. Sri V. Srinivasa Gouda, learned counsel appearing for the first respondent has sought to justify the findings recorded by the trial Court in the impugned order by placing reliance upon the definition of preliminary decree as defined under Section 2(2), the provision of Section 97 read with Order 20, Rule 18, Sub-rules (1) & (2) of CPC contending that passing of the preliminary decree after determining the existing rights of the parties and after passing of the preliminary decree unless that decree is questioned by the aggrieved party by filing Regular Appeal as provided under Section 96 CPC that preliminary decree passed by the Court will be final which cannot be questioned subsequently by a party, as the same would operate as resjudicata in view of the Explanation (iv) of Section 11 CPC. In support of his submission, he has placed reliance upon the decisions reported in; ; ;
paragraphs 8 and 9 and further contended that the
reliance placed upon the decision of S. Sai Reddy v. Narayana Reddy referred to supra by the sixth defendant's counsel has no application to the fact situation of this case, for the reason that in that case Supreme Court has not considered its Larger Bench decisions ; : : It is further contended by the learned Counsel for the plaintiffs in view of the law laid down in the above referred cases the sixth defendant is not entitled for the share in the joint family property on par with the sons as claimed by her under the amended provisions of the Hindu Succession (Karnataka Amendment) Act, 1990 subsequent to the preliminary decree passed in a partition suit, after determination of the existing rights of the parties as on that date, and the shares are declared in respect of the suit schedule properties. The final decree should be passed by the trial Court on the basis of the preliminary decree after satisfying the division of the suit schedule properties by metes and bounds and the same needs to be engrossed on stamp paper unless the appeal is filed by the aggrieved party against such preliminary decree regarding its correctness, the same would become final in view of Section 97 CPC, as held by the Supreme Court in the case : in which case it has held that
determination of the rights of the parties in the partition suit, and passing of a preliminary decree is the final decision in so far as the rights of the parties existed as on that date, therefore, it is urged by the learned counsel for the plaintiff that the same cannot be disturbed by the trial Court in the final decree proceedings as it has reached the final decision in so far as their rights and shares of the Joint family properties, Further, he has rightly placed reliance upon another Supreme Court judgment wherein it
has clearly explained at paragraph 6 of the above judgment with reference to the provisions of Section 28A proviso 1 of the Provincial Insolvency Act, 1920, the meaning of preliminary decree for partition, it has clearly held that it is the final decision. Therefore, the learned counsel for the first respondent plaintiff submits that the findings and the reasons recorded by the trial Court in answer to the contentious issues framed in the impugned order after considering the application filed by the 6th defendant are perfectly legal and valid and therefore the same does not call for interference with by this Court in exercise of its revisional jurisdiction under Section 115 CPC as it is either vitiated on account of illegality or material irregularity for exercise of its revisional jurisdiction and power and set aside the impugned order.
5. After hearing the learned counsel for the parties, I have examined the correctness of the findings and the reasons recorded by the trial Court in the impugned order keeping in view the legal submission made at the bar on behalf of the sixth defendant and the first respondent to consider the rival contentions urged by the parties to answer the same, The definition of Section 2(2) CPC is extracted as hereunder :--
"Section 2(2) :--"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it,conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include :--
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation :--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
6. It is an undisputed fact that the preliminary decree was passed between the parties by the trial Court on the basis of their respective case pleaded by them by answering all the contentious issues framed in the original suit for partition in No. 429/89. The preliminary decree was passed on 11-8-1992 by the trial court after determination of rights of the parties which existed on that date and that decree was the subject matter in Regular appeal No. 69/92 and R. S. A. No. 624/94 by the aggrieved parties, which came to be disposed by passing the Judgment and decree dated 20-3-1998 and 12-10-1998 respectively affirming the preliminary decree passed by the trial Court in the original suit proceedings. It is also an undisputed fact during pendency of the Regular Appeal and Regular Second Appeal though the provisions of Section 6A to Hindu Succession (Karnataka Amendment) Act. 1990 came into force with effect from 30-7-1994, 6th defendant has not made an application seeking for setting aside the preliminary decree passed by the trial Court on the ground that she had acquired the right under Section 6A of the Act and as such she is entitled to be allotted a share in respect of the joint family properties on par with the sons and therefore the preliminary decree passed by the trial Court became final, and therefore the final decree has to be drawn up after effecting partition of the properties by metes and bounds as provided under Section 54 CPC in the final Decree proceedings initiated by the plaintiff, assigning the shares in favour of the parties and put them in possession of the properties by the Deputy Commissioner or Courts Commissioner after following the procedure as contemplated under Section 54 CPC. In this regard, it is necessary for this Court to refer and consider the legal submissions made by the learned counsel on behalf of the parties to find out whether the impugned order requires interference with by this Court in exercise of its revisional jurisdiction and power.
7. The Apex Court in the case after
interpreting the provision under Order 34 Rules 2 and 4 CPC at Paragraph (5), it has succinctly laid down the law with reference to the statutory li- ability of the mortgagee under Section 76(h) of the T. P. Act, 1882 and has laid down the law with regard to the preliminary decree and further held regarding what is the effect of passing of the preliminary decree in a suit.
8. The Apex Court, in the decision reported in Venkata Reddy v. Pothi Reddy , it has clearly held after
interpreting the provision under Section 28A proviso 1 of the Provincial Insolvency Act, the words Final Decision and the meaning of the preliminary decree for partition has been explained after interpreting the provisions of Sections 2(2), 97 read with Order 20, Rule 18, Sub-rules (1) & (2) CPC and law is laid down at paragraph (6) which reads thus :--
"(6) The new provision makes it clear that the law is and has always been that upon the father's insolvency his disposing power over the interest of his undivided sons in the joint family property vests in the official receiver and thap1 t consequently the latter has a right to sell that interest. The provision is thus declaratory of the law and was intended to apply to all cases except those covered by the two provisos. We are concerned here only with the first proviso. This proviso excepts from the operation of the Act a transaction such as a sale by an official Receiver which has been the subject of a final decision by a competent court. The short question, therefore, is whether the preliminary decree for partition passed in this case which was affirmed finally in second appeal by the High Court of Madras can be regarded as a final decision. The competence of the Court is not in question here. What is, however, contended is that in a partition suit the only decision which can be said to be a final decision is the final decree passed in the case and that since final decree proceedings were still going on when the Amending Act came into force the first proviso was not available to the appellants. It is contended on behalf of the appellants that since the rights of the parties are adjudicated upon by the Court before a preliminary decree is passed that decree must, in so far as rights adjudicated upon are concerned, be deemed to be a final decision. The word 'decision' even in its popular sense means a concluded opinion (See Stroud's Judicial Dictionary 3rd Ed. Vol. I. P, 743) Where, therefore, the decision is embodied in the judgment which is followed by a decree finally must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by law. The High Court has. however, observed :
"The mere declaration of the rights of the plaintiff by the preliminary decree, would, in our opinion not amount to a final decision for it is well known that even if a preliminary decree is passed either in a mortgage suit or in a partition suit, there are certain contingencies in which such a preliminary decree can be modified or amended and therefore would not become final."
It is not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended unless what the learned Judges meant was modified or amended in appeal or in review or in revision or in exceptional circumstances by resorting to the powers conferred by Sections 151 and 152 of the Code of Civil Procedure. If that is what the High Court meant then every decree passed by a Court Including decree passed in cases which do not contemplate making of a preliminary decree are liable to be "modified and amended." Therefore, if the reason given by the High Court is accepted, it would mean that no finality attaches to decree at all. That is not the law. A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties, if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree--the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the Court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure, which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree."
9. The said view of the Apex Court has been further re-iterated by the Supreme Court in the case (Mool Chand v.
Deputy Director, Consolidation wherein the Apex Court after considering the three Judges bench judgment and
and also considering the provision Section 97 and
Order 20, Rule 18, Sub-rules (1) and (2) CPC has reiterated the legal principle enunciated in the earlier judgments referred to supra while considering the applicability of the provisions of Section 5(2) of the tenancy and the UP Consolidation of Holdings Act, 1953. Further, the learned counsel for the first respondent plaintiff has rightly placed reliance upon the decision of the Rajasthan High Court wherein it has considered the provisions of Order 20 Rule 18 Sub-rule (1) and (2) CPC in a suit for partition and held that the shares of the parties has to be determined as on the date when preliminary decree has to be passed at Paragraph (8) which reads thus :--
8. "The next" contention raised by Mr. Shishodia is that the shares of the parties should have been determined on the date when Khubilal had purchased the share in auction sale. It is contended that on that date Smt. Badanbai was alive and as such Ganeshlal could have only 1/3 share in the property which could have been sold in the decree against him. I see no force in this contention. So far as the auction sale is concerned, it was clearly mentioned that 1/2 share of Ganeshlal in the house property is sold. Khubilal was an auction purchaser and he had purchased 1/2 share in the auction sale. Now so far as the question as to whether Ganeshlal at that time had only 1/ 3 share or 1/2 share remains of academic importance as admittedly Badanbai has already expired and there is no dispute that her share also devolved equally between the two sons Manohar Singh and Ganeshlal. It is a suit for partition filed by Manohar Singh and on the date when preliminary decree is to be passed the Court has to see as to what share should be given to each one of the parties. Thus, on 11-7-1975 when the Court was called upon to pass a preliminary decree in a suit for partition, it remains of no controversy that both Manohar Singh and Ganeshlal had only 1/2 share each in the property and Khubilal having purchased 1/2 share of Ganeshlal was entitled to a decree of 1/2 share in his favour.
10. After a careful reading of the provisions of CPC referred to supra and the law laid down by the Supreme Court in the case cited supra, the Supreme Court has clearly held that in a suit for partition, the preliminary decree is the determination of the rights of the parties which existed on that date and it is the final decision between the parties. The preliminary judgment and decree is an appealable decree under Section 96 CPC, if the same is challenged and affirmed on the appellate side, that becomes final and therefore the same cannot be questioned in the final decree proceedings by a party is the view taken by the Supreme Court in the case of Moolchand v. Deputy Director, Consolidation wherein it has interpreted the
provision of Section 97 CPC and the notification issued under Section 4 of the U.P. Consolidation of Holdings Act, 1953, it has clearly held that once the preliminary decree is passed by the competent Civil Court, the proceedings so far as the declaration of rights or interest of the parties in the lands are concerned come to an end. Further, in the said judgment, the earlier larger Bench judgments of the Apex Court (Venkata Reddy v. Pothi Reddy) and Gyarsi
v. Dhansukh Lal () with reference to
Section 97 CPC it has been reiterated the law holding that preliminary decree passed by the Court in so far as the matters covered by it are concerned, is regarded as the final decision of the Court between the parties by passing the judgment and decree in the original suit proceedings in this regard at paragraph 27 of the Moolchand's case referred to supra the Apex Court has laid down the
law as hereunder :--
27. "The Privy Council in Ahmed Musaji Saleji v, Hashim Ebrahim Saleji (AIR 1915 P.C. 116) held that failure to appeal against a preliminary decree would operate as a bar to raising any objection to it in an appeal filed against final decree. This Court in Venkata Reddy v. Pothi Reddy has held that the impact of
Section 97 is that the preliminary decree, so far as the matters covered by it are concerned, is regarded as embodying the final decision of the Court passing that decree. It observed as under :--
"A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, Insofar as the matters dealt with by it are concerned, be regarded as embodying the final decision of the Court passing that decree."
This decision was relied upon in Gyarsi Bai v. Dhansukh Lal (AIR 1965 1055) in which it was observed as under :--(Para 6)
"It is true that a preliminary decree is fi-' nal in respect of the matters to be decided before it is made... It is indisputable that in a mortgage suit there will be two decrees, namely, preliminary decree and final decree, and that ordinarily the preliminary decree settles the rights of the parties and the final decree works out those rights."
11. In view of the said statement of law laid down by the Supreme Court in the cases referred to supra after interpretation of the relevant provisions of the Sections 2(2), 97 and Order 20, Rule 18, Sub-rules (1) and (2) CPC, wherein the Apex Court has held that the preliminary decree is the final decision in so far as the determination of the rights of the parties are concerned which existed on that date in allotting the shares to them in respect of the suit schedule properties in the original suit.
12. The above said two judgments of the Apex Court which are reiterated in Moolchand's Case which are Larger
Bench Judgments of the Apex Court which judgments have either been referred to or considered in the case of S. Sai Reddy v. S. Narayana Reddy reported upon which much reliance is placed
upon by the Supreme Court at Paragraph (7) wherein the Apex Court dealing with Section 29A of A. P. Amendment similar to Section 6(A) of the Hindu Succession Act (Karnataka Amendment) Act, 1990 has observed that the preliminary decree can be varied on account of intervening events and therefore the observations made in the above referred case, by the Apex Court, after considering the amended provisions to Hindu Succession Act by Andhra Pradesh Amendment Act, it has not considered the law laid down by the Larger Bench judgments of it referred to supra. Therefore, the law laid down by the Apex Court in the cases referred to supra namely of Moolchand v. Deputy Director, Consolidation, the cases of Venkata Reddy v. Pothi Reddy and also Gyarsi v. Dhansukh Lal are
with all fours applicable to the fact situation of the present case. The above said cases are binding on this Court and not the observations made in the S. Narayana Reddy v. Sai Reddy's case referred to supra for the reasons recorded by me in the preceding paragraph. Therefore, this Court has to accept the legal submissions made on behalf of the first respondent plaintiff in support of the findings and the reasons recorded by the trial Court in the impugned order while dismissing the application filed by the 6th defendant/petitioner. In view of the above said categorical findings recorded by this Court holding that the impugned order passed by the trial Court on LA. No. 5 rejecting the application of the petitioner holding that the preliminary decree was already passed and therefore no right accrued in favour of the 6th defendant under Section 6A of the Hindu Succession Act (Karnataka Amendment) Act, 1990 is perfectly legal and valid and it cannot be interfered with by this Court in exercise of its revisional Jurisdiction. In view of the findings recorded by this Court on the above said point, the other judgments regarding ; the judgments of this Court referred to in the earlier paragraph of this order where the contentions of the learned counsel for the petitioner/6th defendant are referred to, wherein it is urged that before the final de- cree is passed on the basis of the preliminary decree passed by the trial Court, the subsequent event of the right accrued in her favour pursuant to the provision of Section 6(A) of the Act was inserted by way of an amendment to Hindu Succession (Karnataka Amendment) Act, 1990 and therefore the cause of action which has arisen survives in her favour as held by the Full Bench of the Madras High Court referred to supra, which judgment has been followed by the Travancore Cochin Court in the case referred to supra and therefore, Section 11 Explanation (iv) CPC has no application to the present case and therefore it does not operate as resjudicata as contended by the learned counsel for the respondent No. 1 and therefore he has submitted that the legal submissions made on his behalf are wholly untenable in law and therefore he has requested this Court to reject the same as they are all misplaced and the same are not application to the fact situation. This Court has examined the correctness of the submissions made by the learned Counsel, on behalf of the 6th defendant/petitioner, the same does not hold water, in view of the exposition of law laid by the Supreme Court in the cases referred to supra in the earlier paragraphs of this order which are extensively referred to and the relevant paragraphs of the Judgments of the Apex Court are extracted in this order wherein it has laid down the correct position of law. The submissions made on behalf of the respondent No. 1 by his counsel rebutting the submissions of the 6th defendant. Counsel are all well founded and therefore the same must be accepted by this Court as the law is laid down by the Apex Court in the above cases on the legal questions raised in those cases are similar to the present case and therefore the ratio decidendi laid down in those cases would with all fours applicable to the present case.
13. For the reasons stated supra, this petition must fail and accordingly, dismissed.