Mohta, J.:— These five appeals are being disposed of by common judgment as common question of law is involved.
2. A preliminary decree for partition and separate possession of certain properties including same field properties in Civil Suit No. 13 of 1928 was passed on 1-4-1933. During the pendency of the final decree proceedings which are not yet complete, five applicants (appellants) filed an application under section 47, Civil Procedure Code to delete certain properties from the so called execution of the decree on the ground that they had purchased those properties sometime in the year 1953. These applications were filed sometime in 1969. The trial Court by judgment dated 4th November 1980 dismissed the applications as not maintainable under section 47, Civil Procedure Code, without deciding the merits. These appeals are directed against those decisions.
3. Shri Oka, the learned Counsel for the appellants, in the first place, has contended that only because the execution was not pending, the application cannot be dismissed. Reliance was placed in support of this prosecution on 1(M.P Shreevastva v. Veena), A.I.R 1967 S.C 1193. It was also contended that the words “all questions arising” include all those questions which could properly arise. In support of this proposition, reliance was placed on the decisions of this Court in 2(Lakhu Motiram v. Radhabai Mulchand), A.I.R 1952 Bombay 438.
4. Shri Padhye, the learned Counsel for the respondents, has not fairly disputed these propositions. However, he has contended that as preliminary decree has not completely disposed of the matters in controversy and as the question raised does not relate to execution, discharge or satisfaction of the decree, there is no executable decree, and therefore, application under section 47, Civil Procedure Code, at such stage, is not maintainable. I find considerable force in the submission made on behalf of the respondents. It is obvious that final decree proceedings are mere continuation of the preliminary decree proceedings and as the matter is not disposed of, there is no executable decree and consequently, section 47, Civil Procedure Code, cannot be attracted.
5. In the result, the decision recorded by the trial Court has to be confirmed and the present appeals have to be dismissed; but under the circumstances without any order as to costs. Needless to mention that the interim stay stands automatically vacated.
Appeals dismissed.
Comments