Legal questions arising for determination are two fold. Firstly, whether a defendant in a partition suit, who opposed partibility of the estate and whose share was not determined in the preliminary decree, could straight away apply for passing a final decree, without getting a supplementary preliminary decree passed? Secondly, whether an original petition, under Article 227 of the Constitution of India, could be maintained against an order, whereby an application filed by the said defendant for passing a supplementary final decree was dismissed?

2. The matter came up before the Court on an objection raised by the Registry that the original petition for the above relief is not maintainable and the remedy of the petitioner, if at all, is only to file an appeal under the provisions of the Code of Civil Procedure, 1908 (in short, “Code”).

3. Heard Sri.Keerthivas G., learned counsel appearing for the petitioner. Learned counsel, Sri.P.Viswanathan ably assisted this Court as amicus curiae in resolving the legal issue .

4. Before answering the questions posed, I shall state relevant facts briefly. Petitioner is the 4th defendant in a suit for partition. It is averred in the plaint that the sole plaintiff and the defendants 1 to 3 are entitled to get 1/4th share each in the plaint schedule property. Defendants 1, 4 and 5 in their turn contended that the property is not partiable and the plaintiff's rights, if any, are barred by ouster, adverse possession and limitation. Trial court's decree of dismissal was challenged before this Court in a first appeal. After hearing the parties, this Court found that the plaint schedule properties are partiable and also that the plaintiff is entitled to 1/4th share in the properties. Subsequently, the plaintiff filed a final 4th decree application and obtained a final decree passed by allotting her 1/share over the properties. She had taken delivery of the properties set apart to her share.

5. Petitioner, the 4th defendant in the suit, is the son of the 3rd defendant, who did not contest the case. Since the 3rd defendant did not pay the requisite court fee, his share was not declared and no allotment was made to him in the preliminary decree. Whether that procedure adopted by the court is correct or not will be considered later. Petitioner contends that he purchased the 3rd defendant's 1/4th share over the plaint schedule item Nos.1 to 3 properties as per a sale deed. It is therefore contended that he is entitled to get allotment of the above share. In the application, the petitioner's siblings raised a specific contention that the sale deed relied on by the petitioner is a forged document and it is not executed by the 3rd defendant. Factually, entitlement of the petitioner for claiming allotment has been disputed. As per the impugned order, the trial court observed that since the 3rd defendant's share itself was not declared in the preliminary decree and that the assignment said to have been made by the 3rd defendant in favour of the 4th defendant (petitioner) is under challenge, the application cannot be maintained.

6. Without labouring much, the first point can be easily answered. Section 2(2) of the Code defines “decree” in the following terms:

“decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default

Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.”

7. Insof