Shaik Pedda Hajimalong v. Shaik Pachamia

HON'BLE Dr. JUSTICE B. SIVA SANKARA RAO CIVIL REVISION PETITION No.7130 of 2017 ORDER :

Heard learned counsel for the revision petitioners, who are respondent Nos.7 to 12 before the lower Court in I.A.No.1481 of 2010. The 1st respondent herein was one of the defendants in the suit O.S.No.4 of 2004 for partition and applicant in the final decree application pursuant to the preliminary decree, dated 17.01.2008, in seeking for division of the properties. The revision late 2nd respondent was the sole plaintiff, she sought for partition of the plaint schedule properties into nine equal shares and to allot one such share to the plaintiff, leave about the shares to be allotted to the other defendants. There was a preliminary decree passed saying the plaintiff is entitled to 1/9th share in Item Nos.

1 to 18, 20, 24 and 25 of the plaint schedule properties besides past profits and future profits to determine by separate application along with defendant Nos.1 to 4 of the suit. If at all in the preliminary decree said factum covered by the operative portion of the judgment not reflected, decree is to be amended to incorporate the same to read the decree pursuant to the judgment. Thus, from combined reading of the judgment and decree subject to the above, defendant Nos.1 to 4 also along with the plaintiff entitled to shares in the plaint schedule properties supra by virtue of the partition preliminary decree.

2.

It is the say of the revision petitioners, no other than the legal representatives of the late 2nd defendant, that it is their claim in the

Dr.SSRB, J C.R.P.No.7130 of 2017 application under Order IX Rule 7 C.P.C. by their predecessor 2nd defendant that the order setting them ex parte is to be set aside and similar application filed by the 3rd defendant also and it is the version that part of the properties are the self acquired properties of defendant Nos.1 to 4 respectively. While pendency of those applications, there was subsequent to the preliminary decree, settlement arrived with plaintiff by the 2nd defendant even to the knowledge of the 3rd defendant, however, the 3rd defendant having contested for some of the self acquired properties of the defendants and not partiable in that application to set aside the ex parte order, now cannot file the final decree petition pursuant to the preliminary decree and thereby his application in I.A.No.

1481 of 2010 to pass a final decree to divide the property to separate his share pursuant to the preliminary decree is unsustainable. Such a ground raised before the lower Court was negated by the impugned order of the lower Court, dated 10.10.2017 and same is the contention raised in the revision therefrom. 3.

Heard both sides at length.

4.

Undisputedly, after preliminary decree passed any adjustment inter se between the defendant Nos.2 and 3 with plaintiff not borne by any record, much less by any application to pass further preliminary decree by recording any such change or subsequent events, as the case may be. Once such is the case, on the preliminary decree not even appealed and pursuant to the preliminary decree any final decree

Dr.SSRB, J C.R.P.No.7130 of 2017 proceedings taken up by any of the parties, entitled to work out their rights defined in the preliminary decree any objection beyond the scope of preliminary decree is unentertainable. Thereby, the lower Court is right in not chosen to go beyond the final decree in the final decree application. Thus, remedy of the petitioners being the legal representatives of the deceased 2nd defendant if at all to impugn the preliminary decree is elsewhere.

5.

Accordingly and with these observations, the civil revision petition is disposed of.

Miscellaneous petitions pending, if any, shall stand closed. ____________________________ Dr. B. SIVA SANKARA RAO, J 2nd January 2018 mar