The main legal point established in the judgment is that the suit was not maintainable due to the application of Order II Rule 2 C.P.C. and Section 10(1) of the Family Courts Act, and it was also barred by limitation under the Limitation Act.

Balachandran, J.

1. This appeal is by the petitioner/wife and the respondent is her husband who was the respondent in the Original Petition. She challenges in this appeal the dismissal of O.P. 847 of 1998 filed by her for a decree for return of gold ornaments or its value and for realization of money. The dismissal vide judgment dated 20.11.1994 was consequent on finding entered on the preliminary point of maintainability.

2. The brief facts necessary for appreciation of the case can be stated as follows:- The appellant and the respondent got married on 8.2.1971 and their marital tie still subsists. All the same they have fell out and are having separate residence from 26.5.1990 onwards as averred in the Original Petition. The appellant filed O.S.101 of 1993 against the respondent for partition and rendition of accounts. A preliminary decree was passed in the above case on 6.2.1996 on the following lines:-

“In the result, the suit is decreed on the following terms. The plaintiff is allowed to partition half share over the plaint schedule property and to get her share separated. For dividing property, the plaintiff may apply for commission. The mode of partition will be decided in the final decree proceedings. The prayer for rendition of accounts is disallowed. Till the B schedule property is divided by meters and bounds, the 1st defendant is restrained by a decree of permanent injunction from interfering with the plaintiff’s right and possession and residence in the building in the B schedule property. The 3rd defendant is directed by a decree of mandatory injunction to pay half of the periodical interest accrued from January 1991 onwards to the plaintiff. In the circumstances of this case, parties are directed to suffer their costs”.

3. While the proceedings for passing of a final decree was in progress in O.S.101 of 1993 on the application of the appellant vide I.A.813 of 1996, she filed an application for setting aside the preliminary decree and reopening the evidence in the case. The Family Court vide order dated 8.8.2000 rejected the application stating as follows:-

“Preliminary decree has already been passed. It stands unchallenged. Therefore there is no scope for reopening evidence and reagitating the matter before the court as far as preliminary decree is concerned. Therefore prayer for reopening evidence and setting aside the preliminary decree is disallowed”.

4. Aggrieved by the said rejection, the appellant filed M.F.A. 950 of 2000 before this court. A Division Bench of this court vide order dated 23.11.2000 disposed of the said application observing as follows:-

“Considering the nature of the contentions of the parties and also considering the facts and circumstances of the case it is only just and proper that an opportunity be given to the appellant to file an application for framing a second preliminary decree, in the event of which the same would be considered by the Family Court after hearing both the parties”.

5. It is submitted that application for passing of a second preliminary decree filed in O.S.101 of 1993 was disposed of directing that the monetary claims will be adjudicated in O.P.847 of 1998 and O.S.220 of 1994 which were pending before the Family Court then and final decree was passed in O.S.101 of 1993 on 14.8.2003 and that is also stated in clause 5 of the final decree thus:-

“5. The monetary claims of the parties shall be separately adjudicated in O.P.847/98 and 220/94 pending before this court”.

6. It is thereafter that O.P.847 of 1998 is dismissed vide order impugned in this appeal holding that it is not maintainable.

7. Appellant and respondent fell out and were residing separated with effect from 26.5.1990. In 1993 was the suit for partition and rendition of accounts filed as O.S.101 of 1993 and a decree passed therein as stated above while the present Original Petition was pending before the Family Court. The Original Petition was dismissed by the court below holding that it is not maintaina