In a partition suit, the court has the power to pass a second preliminary decree if circumstances justify it, such as the death of parties or sale or loss of properties. However, this power can only be exercised before the final decree is passed.

ORDER :

This Civil Revision Petition is directed under Article 227 of the Constitution of India against the Order, dated 04.02.2008 in I.A.No.838 of 2007 in O.S.No.68 of 1999 on the file of the II Additional District Judge, Amalapuram, East Godavari District, where under the interlocutory application filed under Order XX Rule 18 of the Code of Civil Procedure, 1908 (for brevity ‘CPC’) by the revision-petitioners/plaintiffs, for passing of final decree in terms of preliminary decree, was ‘Allowed’ holding at para Nos.13 and 14 which are extracted hereunder:

“13. In view of the above discussion, I hold that the total extent remaining in item Nos.1 and 2 of plaint A schedule must be taken to have been allotted to the plaintiffs towards a part of their 1/4th share and on the request of the plaintiffs, the commissioner may divide that available extent in items 1 and 2 of plaint A schedule into 3 parts for allotment to each of the plaintiffs 1 to 3 only. The Commissioner will divide the items of plaint B schedule into 4 equal shares by metes and bounds and may show the value of each of the items according to nature and potentiality of the property. The allotment may be taken up by the Court taking into consideration of the values of the items. So as order can be passed as stated above.”

“14. In the result, this petition is ordered directing physical division of the extent available out of items 1 and 2 of plaint A schedule i.e., 360 square yards in item No.1 of plaint A schedule and 1113.2 square yards of site in item No.2 of plaint A schedule into 3 equal parts and for furnishing market value each of such part either plot wise or rate wise. Each of the items 1 to 8 in plaint B schedule are directed to be divided into 4 equal parts by metes and bounds with their value either item wise or rate wise. The Commissioner to be appointed shall effect division by metes and bounds as stated above and the Commissioner will file a detailed report with detailed measurements including G-line and offsets wherever required and would file plan with surrounding locations to exactly localize the item. The Commissioner will give the market value of each of the item of the plaint schedule or the market rate of each of the item of plaint schedule. The Commissioner shall not allot the plots to the parties as it would be taken up by the Court. The working out equities will be decided at the final hearing of this petition.”

2. Aggrieved by the impugned Order passed by the Trial Judge, the revision-petitioners/plaintiffs preferred the revision contending that instead of directing the Commissioner for division of property in terms of preliminary decree, the Trial Court made modifications to the terms of the preliminary decree and directed to divide the property as per the extent available on record.

3. In the light of above contentions, the point for consideration is as under:

“Whether the Trial Court committed any irregularity in the Order, dated 04.02.2008 passed in I.A.No.838 of 2007 in O.S.No.68 of 1999?”

4. POINT: -

There is no dispute with regard to filing of suit by the revision-petitioners against the respondents for partition of (a) item No.1 of plaint ‘A’ schedule property into three (03) equal shares; (b) item No.2 of plaint A schedule and B schedule property into four (04) equal shares by metes and bounds and to allot three shares to the revision-petitioners. Besides that the revision-petitioners also sought the relief to declare that the alienations made by D.1 and D.2 in respect of portion of plaint A schedule property as illegal, unenforceable and not binding on the plaintiffs; to direct D.2 and D.3 to render true and correct accounts of the income derived on M.K.Reddy Complex constructed by D.3 and another complex constructed by D.2; to direct D.1 to render true and correct accounts in respect of the income derived by him out of item No.2 of plaint A and B schedule properties; to direct D.14 to D.42 the tenants to deposit the rents into the Court t