The main legal point established in the judgment is the court's duty to pass a decree in accordance with a compromise memo, the necessity of a preliminary decree when properties are already partitioned, and the absence of a time limit for submitting non-judicial papers for the final decree in a partition suit.

Heard both sides

2.The first defendant in O.S.No.144 of 1989, on the file of the Sub Court, Sivagangai, is the revision petitioner herein.

3.O.S.No.144 of 1989 was filed by the 1st respondent herein against the revision petitioner and 5 others, for partition of the properties mentioned in the suit. During trial, an endorsement was made by the plaintiffs counsel on 08.03.1991 exonerating the defendants 3 to 6 from the array of parties and a memo of compromise was filed on the same day by the plaintiff and the defendants 1 and 2 and it was prayed that decree may be passed in terms of the compromise. It is seen from terms of compromise that certain properties were allotted to the plaintiff, the 1st respondent herein and certain properties were allotted to the first defendant, the revision petitioner herein and the suit was not pressed in respect of schedule C D & F and the plaintiff and defendants 1 and 2 shall enjoy jointly amount mentioned in the E schedule. The defendants 2 to 6 are the sisters of the plaintiff and the first defendant and on the basis of the memo of compromise an order was passed by the court on 08.03.1999 as follows; “This compromise petition has been presented by the plaintiff and the defendants 1 & 2. Other defendants are exonerated by the plaintiff vide endorsement made on the plaint by the counsel for plaintiff. Plaintiff and D1 & D2 present in the open Court with their counsel. The compromise petition was read over and explained to the parties present and they admit the correctness of the same. Hence, this compromise petition is recorded.”

4.Thereafter, the case was adjourned to 21.08.1991 and without verifying that, a compromise memo was filed on 03.08.1991 and it was recorded by the court, the suit was dismissed for non-prosecution on 21.08.1991. Thereafter, I.A.No.290 of 2008 was filed by the respondents stating that after filing of the compromise memo, the case was adjourned to 14.03.1991 for submitting the non-judicial stamp paper for engrossing the decree on the stamp paper and on 21.08.1991, the case was adjourned for the same purpose and on that date, as the petitioner/plaintiff was not present, the suit was dismissed for default and after recording the compromise, the Court should not have dismissed the suit for default and he was under the impression that decree has been passed on the basis of the compromise memo he did not appear on 21.08.1991 and he was not aware that he has to furnish non-judicial paper for the decree to be engrossed on the stamp paper and he was under the impression the suit was settled amicably by the filing of compromise memo and as the revision petitioner/ 1st defendant is disputing the claim and right of the respondent over the property, it becomes necessary for filing the petition.

5.The revision petitioner resisted the application stating that the application filed by the petitioner under sections 151, 152, 153 C.P.C. is not maintainable and there is no clerical or arithmetic error or error apparent on the face of the record in the decree passed in O.S.No.144 of 1989 while dismissing the suit for non-prosecution and the application filed after a lapse of 16 years is also not maintainable and once the suit is dismissed for default, it has to be restored within a period of 30 days and if sufficient reason is stated that can be considered in an application filed under section 5 of the Limitation Act and without stating any acceptable reason and without filing application to condone the delay, the application filed for restoration of suit is not maintainable. It is further stated that the revision petitioner has also perfected title by adverse possession and the claim of the respondents is also barred by limitation.

6.The lower Appellate Court relying upon the judgment of the Honourable Supreme Court reported in A.I.R.2001 SC 1084 [Jayalakshmi Coelhi vs. Oswald Joseph Coelho] held that there is no time limit for receiving non-judicial stamp papers for preparing