In the case of a preliminary decree for partition, the Court is duty bound to continue the proceedings and pass a final decree, if permissible. No further right necessarily accrues in this regard. Limitation will not come into play until the final decree is passed.

V.S.AGGARWAL, J.

1. The present revision petition has been filed by Naresh Kumar and another, hereinafter described as the petitioners, directed against the order passed by the learned Civil Judge (Senior Division), Rohtak, dated 9-3-1998. By virtue of the impugned order, the learned trial Court rejected the request of the petitioners that the application filed for passing the final decree is barred by time and appointed an Advocate to suggest the mode of partition and the share of the respondent decree-holders in accordance with the preliminary decree.

2. The facts relevant are that a preliminary decree for partition was passed. Thereafter respondent decree-holders submitted an application for passing a final decree on the basis of the judgment and decree dated 18-3-1989 with a request for the appointment of the Local Commissioner to suggest the mode of partition and share of the decree-holders. Notice of the application was issued to the petitioners who had taken up the plea that the respondent decree-holders are not entitled to get their shares because the application is barred by time. It had been contended that the preliminary decree was passed on 18-3-1989. Against the same, an appeal was filed with the learned District Judge, Rohtak, and thereupon in this Court. This Court had dismissed the same on 8-2-1993. During the pendency of the first and second appeal, there was no stay that had been awarded. Accordingly, as per petitioners, the application seeking passing of the final decree was barred by time. Learned trial Court vide the impugned order, as mentioned above, rejected the said contention holding that the preliminary decree was passed on 18-3-1989 and the successor Court had the power to entertain and decide the application because the application filed for appointment of the Local Commissioner was within time. In view of the learned trial Court, earlier the application could not be filed because of the litigation that has been pending between the parties. Aggrieved by the said order, present revision petition has been filed.

3. As pointed out above, learned counsel for the petitioners had urged that the application filed for passing of the final decree was barred by time and in this regard the above said fact can be repeated. The preliminary decree was passed on 18-3-1989 for partition. The appeal was dismissed by the learned District Judge, Rohtak, in the year 1991 and this Court dismissed the second appeal on 8-2-1993. The application was filed for passing of the final decree on 30-9-1994. Admittedly, there was no stay that had been granted during the pendency of the appeal. Thus, according to the learned counsel for the petitioners, the period of limitation start running from the time the preliminary decree was passed.

4. Learned counsel for the petitioners in support of his argument relied upon the decision of the Allahabad High Court in the case of Baljit Singh (deceased by L.Rs.) V/s. J. I. Cunnington, AIR 1984 All 209. In the cited case, the suit was filed for recovery of certain amount on the basis of mortgage of land. A preliminary decree was passed for sale of mortgaged property. Period was fixed therein for payment of amount found due. Subsequently, an application for preparation of final decree was filed after three years of the preliminary decree. Allahabad High Court held that the application for preparation of final decree was barred by time.

5. The said contention of the learned counsel is totally devoid of any merit. As would be noticed hereinafter, the decision in the Baljit Singhs case (AIR 1984 All 209) (supra) is totally distinguishable because it pertained to a preliminary decree passed for recovery of the amount in a mortgaged matter. A clear distinction in this regard must be drawn between a preliminary decree for partition and a decree for foreclosure under Order 34 of the Code of Civil Procedure (for short "the Code").

6. To appreciate the said controversy, reference can well be