The main legal point established in the judgment is that a preliminary decree in a partition suit is conclusive and final, and matters decided by it should be regarded as embodying the final decision on those matters. The court also clarified that an application for passing a final decree in a partition suit is not governed by the Limitation Act, as it is a reminder to the court of its duty and not an application for which a time limit is prescribed.

1. This Civil Revision Petition is against the finding of the court below holding that the suit is barred by res judicata. Plaintiffs are the revision petitioners. The suit is one for partition. On the averments in the pleadings, the defendants wanted the court to raise an additional issue whether the suit is barred by res judicata by reason of the decree in O.S.No.13/66. The court settled the above issue and allowed that issue to be tried as a preliminary issue. As I said earlier, the finding on this preliminary issue is against the plaintiffs. They are aggrieved. They filed this Civil Revision Petition.

2. It is admitted that there was an earlier suit --O.S.No.13/66 between the parties. This suit was also for partition of the property involved in the present suit. In this suit (O.S.No.13/66) a preliminary decree was passed on 3-4-1968. The said judgment was appealed against in A.S.No.376/68. The appellate decree was passed on 11-11-1971. So, there is a final and concluded decree between the same parties in respect of the suit property. The shares in the suit property due to the plaintiffs have been decided in the earlier suit O.S.13/66. This composition of facts was urged by the defendants to say that the present suit is barred by res judicata.

3. Plaintiffs contended that though the judgment in A.S.No.376/68 has become final, no final decree has been passed in the case and no final decree can be passed in the earlier suit because of the long lapse of time. In these circumstances, they said that the parties continued to be in joint possession of the property and so there is no bar of res judicata for filing a fresh suit, viz, the present suit. This contention was not accepted by the trial court. Further it was pointed out that I.A.No.271/86 filed on 19-2-1986 in O.S.No.13/66 for passing a final decree is pending.

4. What is the effect of a preliminary decree and judgment in a partition suit in re-question of res judicata? Is there any period of limitation for passing a final decree in a partition suit from the date of passing of the preliminary decree? What are the obligations and duties of the court and the parties, after passing a preliminary decree?

5. A preliminary decree pursuant to a judgment in the suit is not a tentative decree or a judgment, but must in so far as the matters decided by it are concerned, be regarded as conclusive and final. It is true that a preliminary decree is not executable. The finality of a decree or judgment does not depend on the executability of a decree. There are cases where the court passes decrees declaring the rights of parties. In such decrees, there may not be any executable mandate. Nevertheless, issues raised and decided in those cases, if not properly appealed against or reviewed, will be binding on the parties and will be conclusive between the parties in later suits. S.97 of the Code of Civil Procedure is certainly an indication that matters decided by the court in a preliminary decree should be regarded as emobodying the final decision on those matters as far as the parties are concerned. The argument that a preliminary decree is incapable of effectuating a final relief and that further action on the preliminary decree is required to be taken for securing the relief to which a party is entitled to by the decision is no reason for not regarding that decision as final. The word 'decision' implicits in common parlance a concluded opinion (see Stroud's

Judicial Dictionary 3rd Edn. Vol. I p.743).

6. Certainly there is a decision when a preliminary decree is passed. The Code provides that such a decision is appealable. If a matter has not been finally decided, there is no point in allowing an appeal by the statutory provision. So I am of the view that the decision of the court on disputed questions between the parties embodied in the judgment which is followed by a decree is a final decision in the sense that it is no longer open to question by either party except in an appeal,