The duty of drawing a final decree in a partition suit is that of the court, and the suit remains pending until a final decree is drawn up. The court can give appropriate directions even after the passing of the preliminary decree.

( 1 ) THIS Civil Revision Petition, raises an interesting question under Order XX, Rule 18 (1) of the code of Civil Procedure under the following circumstances :--The petitioner instituted O. S. 133/49-50 against the respondents for partition and possession of his share of the joint family property. A preliminary decree came to be passed in his favour on 22nd January 1951. It reads as follows :--

"it is ordered and decreed that the plaintiff is entitled to 1/4th share in the suit schedule properties and is directed to take possession of his share of the properties from the defendants. The defendants are directed to pay past the mesne profits of 3 candies of ragi and 15 kologas of avare or their value of Rs. 120/- with costs and mesne profits from the date of suit till the date of delivery of possession will be ascertained in an application under Order XX rule 12 C. P. C. A preliminary decree with three months' time is drawn up. It is further ordered and decreed that the defendants do pay to the plaintiffs the sum of Rs. 25-1-10 being the amount of costs incurred in this suit as by memorandum annexed, with interest thereon at six percent per annum from this day upto the date of realisation. "

After this preliminary decree the plaintiff-petitioner filed an application on 30-6-1952 for a final decree praying, amongst other reliefs, for directing the division of the suit property into four equal shares and the defendants to deliver possession of one such share to the plaintiff. It appears from the certified copy produced by Mr. P. Subba Rao the learned Advocate for the respondents that after the issue of notices none of the defendants appeared and the Court passed an order 'draw up F. D. '. This was on 30. 6. 1952. Nothing was done by the Court thereafter. The plaintiff again, filed an application on 17. 10. 56 for a final decree. It is not clear what orders were passed on that application. He, again, approached the Court on 28. 8. 1959 by an application in the suit and it was marked as I A No. 2 The plaintiff prayed for transferring the record and proceedings of the suit to the Collector for effecting a division by metes and bounds. This application was opposed by the respondents on the ground that the preliminary decree did not contain any direction for transfer of the records and proceedings to the Collector and that the order for the drawing up of a final decree having been passed in 1952, the present petition of 1959 was barred by limitation. The respondents relied upon a decision of the Court of the judicial Commissioner, Sind in Khan Mahomed v. Hemandas Pritamdas, AIR 1935 Sind 192 and upon a decision of this High Court in Laxman Minaji v. Narayana Appayya, 38 Mys L J 957 : (AIR 1961 Mys. 172 ). The Munsiff upheld their contention and dismissed the petition. The petitioner has challenged the correctness of this order passed by the Munsiff. The learned Advocate appearing for the petitioner has submitted that a suit for partition of a family property continues to be pending on the file of the trial court until a final decree is passed after effecting a division by metes and bounds in terms of the shares defined by the preliminary decree and that the omission to give direction in the preliminary decree for transfer of record and the proceedings to the Deputy Commissioner to effect a division of the agricultural lands under section 54 C. P. C. is merely a procedural matter which could be rectified by the trial Court at any time. On the other hand, the learned Advocate for the respondents has contended that an order for drawing up a final decree having been passed as early as on 30-6-1952, it should be deemed that the suit had come to an end and that the trial Court had become functus officio.

( 2 ) I have quoted the terms of the preliminary decree in full and it is obvious that it does not contain any directions for transfer of the record and the proceedings to the Deputy Commissioner for effecting a division under S. 54 of the

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