IMPORTANT POINT
When in a partition suit, the suit was finally disposed of on the basis of compromise arrived at between parties, parties were put in possession of respective properties which fell to their share, it was a final decree and not a preliminary decree and an application filed in terms of Order XXVI Rule 13 Civil Procedure Code, after a period of 13 years was held liable to be dismissed.

Headnote:Civil Procedure Code, 1908-Order XXVI-Rules 13 and 14 rw/s 151, Section 2(2)-Partition suit-Compromise decree dividing joint family properties-There was complete partition of suit properties-Parties have been put in possession of their respective shares of immovable properties-Application filed by plaintiff, widow of eldest brother in the family, under Order XXVI Rules 13 and 14 after a period of 13 years-Whether maintainable-(No)-Whether decree passed by trial Court on basis of compromise arrived at was final decree or preliminary decree-Held, it was final decree-Suit was finally disposed of-Compromise application does not contain any clause regarding future course of action-Presumption of High Court that it was a preliminary decree is error in approach of High Court in deciding the issue-Application dismissed.
       Held : The tenor of the entire compromise application in our view clearly indicates that the parties settled the entire controversy in the suit and reached a compromise with respect thereto. They effected partition of the Schedule immoveable properties and allotment was made as per Schedules I to IV. Schedule I which alone is relevant for the present purpose shows that the properties at Serial Nos. 1 to 3 and 5 were placed in exclusive possession of the plaintiffs. So far as property No. 4 is concerned, the same was under acquisition and therefore only compensation had to be received which could be shared by the parties as and when it was received. Regarding Property No. 6, the plaintiff s share had been converted into an equivalent in cash amounting to Rs. 7500/- recoverable from the other three brothers. Property at Serial No. 7 was under litigation as it was occupied by outsiders. The evidence on record shows that in view of the uncertainty about the litigation with respect to property at Serial No. 7, its partition was neither practical nor desirable. Therefore, for all practical purposes, there was a complete partition of the suit properties. The compromise further shows that the partition of suit properties in this manner was acceptable to the plaintiffs, that is why, they moved the joint compromise application and prayed for decree in terms thereof. (Para 14)
       When parties have been put in possession of their respective shares of immoveable properties by way of decree dated 13th July, 1978, nothing remains for final decree proceedings. In fact, nothing remains to be performed further. If under that partition some property or properties were kept joint, it was because the parties agreed to that course of action. Having agreed to keep the properties joint and having had the suit finally disposed of as per prayer made to the court, it did not lie in the mouth of the plaintiffs to ask for final decree proceedings again and to re-open the partition. The only course open to the plaintiff in such a case would be to file a fresh suit for partition with respect to properties which were kept joint. The fact that the plaintiffs applied for final decree proceedings after a lapse of more than 13 years further shows that this was an after thought on the part of the plaintiffs and we are inclined to believe defendant No. 1 when he says that in view of change in values of the properties due to passage of time, the plaintiffs were trying to wriggle out of the partition decree dated 13th July, 1978. The court while dealing with the compromise application of the parties containing a prayer for passing a decree observed that the suit had come before the court for final disposal on 13th July, 1978. The court further observed that parties had agreed to compromise the matter of the suit and they had put in court a deed of compromise praying that a decree be passed in accordance with the terms of compromise. This shows that the court also proceeded on the basis that it was finally disposing of the suit be recording a compromise between the parties with respect to subject matter of the suit. (Paras 14, 15 and 16)
       In a partition suit, a court is required to define the shares of the parties, identify the joint properties which are to be partitioned, allocate properties to parties as per their respective shares and put the parties in possession of properties allocated to them. All this happened with agreement of parties when the court passed the decree on 13th July, 1978. No step is missing in those proceedings. Therefore, nothing remained to be done. (Para 16)
       In partition matter it is always open to the parties to enter into fresh arrangement. They may even decide to be again joint with respect to the properties which means that they may throw the properties in the common pool again. The parties are free to adopt whatever course of action they may choose in future by way of mutual arrangement. (Para 20)
       In a preliminary decree normally the court declares the shares of the parties and specifies the properties to be partitioned in the event of there being a dispute about the properties to be partitioned. After declaring the shares of the parties and the properties to be partitioned, the court appoints a Commissioner to suggest mode of partition in terms of Order XXVI Rule 13 CPC. A perusal of Order XXVI Rule 13 CPC shows that it comes into operation after a preliminary decree for partition has been passed. In the present case, there was no preliminary decree for partition and, therefore, Rule 13 of Order XXVI does not come into operation. (Para 21)

Judgement Key Points

The defects in this case primarily relate to the ambiguity and potential inconsistency in the classification of the decree, which can lead to procedural and substantive issues:

Ambiguity in the Decree’s Language: The language used in the decree may not clearly indicate whether it was intended to be final or preliminary. If the decree’s wording is ambiguous or open to multiple interpretations, it creates uncertainty about the parties’ rights and the scope of the adjudication (!) .
Lack of Explicit Finality Clause: The decree may lack an explicit declaration that it is a final decree, which is essential to establish conclusiveness. The absence of such a clause can lead to disputes over whether further proceedings are permissible, especially after a long lapse of time (!) .
Inconsistent Conduct of Parties: The conduct of the parties after the decree was passed might not conclusively support the claim that the decree was intended to be final. If parties continued to act as if the matter was unresolved or did not accept the decree as final, it undermines the argument for its finality (!) .
Delay in Filing Applications: The significant delay in filing applications for final decree can raise questions about the decree’s finality and the parties’ understanding of their rights. Such delays can be construed as an acknowledgment that the decree was only provisional or partial, or conversely, can be used to argue that the decree was final and the delay is unjustified (!) .
Potential for Misinterpretation of the Compromise: The terms of the compromise may not have been sufficiently clear or comprehensive to conclude that all matters were settled. If the compromise left certain properties or rights undivided, the decree might be only partial, which would impact its classification (!) .
Procedural Defect in Classification: There may be procedural flaws in how the decree was interpreted or classified by the courts, especially if the court failed to consider the context, language, and conduct of the parties thoroughly. Such procedural lapses could render the classification invalid or open to challenge (!) .
Absence of Clear Intention for Finality: The absence of evidence demonstrating a clear intention of the parties or the court to treat the decree as final constitutes a defect. Without such intent, the decree’s finality remains questionable, affecting subsequent proceedings and the parties’ rights (!) .
Overlooking of the Nature of the Partition Suit: If the nature of the partition suit was inherently preliminary or subject to further division, treating the decree as final could be a procedural error, leading to unjust bar to further partition proceedings (!) .

These defects highlight the importance of precise language, clear intent, and proper procedural adherence in the passing and interpretation of decrees in partition suits.

JUDGMENT

Arun Kumar, J.-This appeal is directed against an order dated 19th June, 1998 of the High Court of Andhra Pradesh whereby the order of the trial court rejecting an application of the plaintiff under Order XXVI Rules 13 and 14 read with Section 151 of the Code of Civil Procedure was set aside and the trial court was directed to take steps towards passing a final decree. Briefly the facts are :

2. Parties to the suit are closely related being members of a family of four brothers. Plaintiff No. 1 was the widow of the eldest brother. On 14th May, 1975 she filed a suit for partition of the joint family immoveable properties in the court of the District Judge, Adilabad (A.P.). Plaintiff No. 2 is the daughter of plaintiff No. 1 Defendants are younger brothers of husband of plaintiff No. 1 and members of their families. During the pendency of the suit, parties arrived at a compromise. A joint application was filed under Order XXIII Rule 3 CPC praying that the compromise be recorded and a decree in terms of the compromise be passed. The learned District Judge passed the decree on 13th July, 1978 on the basis of the said compromise application.

The entire controversy in the present appeal revolves around the decree dated 13th July, 1978. The question is whether the said decree was a final decree or a preliminary decree. Defendants are the appellants in this appeal while plaintiff is the respondent. We will refer to the parties as plaintiff and defendants.

3. On 20th September, 1991 plaintiff No. 2 (plaintiff No. 1 had died in the meanwhile) moved an application under Order XXVI Rules 13 and 14 read with Section 151 CPC praying that a Commissioner be appointed to divide the joint properties by metes and bounds and to allot separate shares as per the decree dated 13th July, 1978. In the body of the affidavit filed in support of the said application, the plaintiff stated that she had been put in separate possession of properties at Serial Nos. 1, 2, 3 and 5 in Schedule -I to the decree dated 13th July, 1978 while properties at Serial Nos. 4, 6 and 7 were put in joint possession. According to the plaintiff, a Commissioner had to be appointed in pursuance of the decree to divide the joint properties as per shares of parties by metes and bounds and to allow separate possession and enjoyment thereof. Only defendant No. 1 filed a reply to the said application opposing the same. According to the defendant with the passing of the decree dated 13th July, 1978 pursuant to the compromise arrived at between the parties, the final partition had taken place and nothing remained for taking any further steps for partition. He averred that in view of change in value of the properties with the passage of time, the plaintiff was trying to wriggle out of the decree dated 13th July, 1978. In October, 1985 in view of such an attitude of the plaintiff a further arrangement had taken place between the parties. The said arrangement had also been acted upon. Even during the pendency of the application, a compromise in writing had taken place between the parties on 5th July, 1992. It was a Memorandum of family arrangement to which the plaintiff was a party. The same had been arrived at in the presence of parties and others including some advocates. The defendant pleaded that in view of the subsequent developments, the court may pass a decree in accordance with the Memorandum of family arrangement executed between the parties. In any case as per the stand of the defendant, the application under reply was not maintainable and was also hopelessly barred by time having been made more than 12 years after the decree dated 13th July, 1978. The learned District Judge framed the following points for consideration for deciding the application :

1. Whether the application is maintainable under law?

2. Whether there was any settlement between the parties subsequent to the passing of the compromise decree and for that reason the petition

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