1. This is a revision under Section 115 of the CPC by Smt. Bittan Devi and five others, defendants, against the order dated 20-8-1962 of the Additional Munsif of Kanpur, dismissing their application for separation of their share through the agency of a commissioner.
2. The material facts of the case are that Rudra Sen Bajpai opposite-party No. 1, instituted a suit for partition of his 1/24th share in the properties in dispute belonging to the parties Kashi Narain Bajpai since dead and now represented by applicants Nos. 1, 2 and 6, and applicants Nos. 3 to 5, were defendants Nos. 1 to 4 in the suit. The other defendant Nos. 5 to 10 are the present opposite parties Nos. 2 to 7 There was a compromise between the parties where under the share of the plaintiff and of defendants Nos. 6 to 10 was held to be one-third and of defendants Nos. 1 to 4 two-third. A preliminary decree was passed accordingly, but it appears that neither the plaintiff, nor defendants Nos. 5 to 10, took steps for the passing of the final decree Defendants Nos. 5 to 10 had also not paid any court-fee for the separation of their share. When no steps were taken by the plaintiff and defendants Nos. 5 to 10 for the separation of their share, the present applicants as legal representatives of defendant No. 1 and the others as defendants themselves moved the prerent application for separation of their share. The Munsif rightly thought that three questions required consideration: firstly, whether it was necessary for the defendants-applicants to pay court-fee before any action could be taken on their application; secondly, whether there was any stage upto which a party should pay court-fee and apply for the preparation of the final decree; and thirdly, whether the preliminary compromise decree declared the share of the applicants and thereby gave them a right to take steps for the preparation of the final decree.
3. The Munsif rightly held that court-fee to the extent of the defendants-applicants' share was payable on the application, but took the wrong view that an application made after the passing of the preliminary decree was not maintainable and that the preliminary compromise decree already passed did not determine the applicants' interest in the property.
4. The learned Advocate for the applicants was not able to bring any material to my notice which could exempt them from payment of court-fee on the application for separation of their share, nor could he bring any provision under which the applicants were exempt from payment of court-fee and also the stamp duty on the final decree.
5. When the defendants apply for the preparation of final decree by separation of their share, what they desire is that they be treated as co-plaintiffs and their share separately allotted to them Plaintiffs and also defendants standing in the category of plaintiffs must pay court-fee before their prayer can be granted. Similarly, stamp duty, if any payable at the time of the passing of the final decree shall also be payable by them.
6. The learned Munsif was alive to the factor that under the preliminary compromise decree the share of the defendants applicants had also been determined, but he was under a misapprehension that an application by the defendants for the partition of their share must be made before the passing of the preliminary decree and that the compromise decree in excess of the declaration of the share of the plaintiff was invalid and beyond jurisdiction.
7. Order XX Rule 18 of the CPC governs the decree to be passed in a partition suit. Clause (1) thereof to inapplicable to the instant case and can be kept out of consideration Order XX Rule 18 of the CPC that provides that where the Court passes a decree for the partition of property or for the separate possession of a share therein, it may, if the partition or separation cannot be conveniently made without further inquiry pass a preliminary decree declaring the rights of the several parties interested in the property, and give such further directions as may be required. The words “declaring the rights of the several parties interested in the property” are of great significance. The applicants defendants were not only parties to the suit, but were persons interested in the property, and consequently their rights have also to be declared under the preliminary decree. It is true that the Courts of law generally lay down in the preliminary decree the plaintiffs' share or rights in the property; but where the defendants desire that their share or interest be also declared, the preliminary decree should contain such a declaration also. If, for some reason, the defendants' rights have not been declared in the preliminary decree, the aggrieved party can challenge the decree in appeal or can apply for review. One thing is clear that after the passing of the preliminary decree also, the defendants can apply for and have their share partitioned on payment of court-fee etc. as may be necessary under the law.
8. The Courts of law cannot go behind the decree and have to take further steps on the basis of the decree already passed. Consequently, if the preliminary decree passed in a partition suit does not contain any declaration as to the rights of the defendants, their application for the partition or separation of their share shall not be maintainable till they have the preliminary decree suitably modified, but once the preliminary decree contains a declaration as to the defendants' share, they can, even after the passing of the preliminary decree, take steps for the separation of their share.
9. In the instant case, the preliminary compromise decree contained a declaration as to the rights and interest of defendants Nos. 1 to 4 in the properties in dispute. Their share was declared to be two-third. This part of the preliminary decree was thus legal and within jurisdiction. The finding of the Munsif to the contrary is against the law.
10. As held in Lachmi Narayan Marwarv v. Balmakund Marwary, AIR 1924 PC 198 it is the plaintiff who ordinarily moved the Court to initiate the supplementary proceedings after the passing of a decree; but there is no legal bar to any party to the suit taking such steps provided that his rights and interest have also been declared under the decree. The actual observation made in this case is:
“After decree it is open to any party to a suit, to whose interest it is that further proceedings be taken, to initiate the supplementary proceedings; but in the ordinary case it is the plaintiff who moves.”
In the instant case, the plaintiff did not take my steps, may be because he was not keen about separation of his share, but wanted an adjudication of his rights in the property. In the circumstances, the defendants could take effective steps to enforce the preliminary decree and this they could do by applying for the separation of their share and passing a final decree.
11. The Munsif was under a wrong impression that the present application made by the defendants-applicants was not maintainable. He has failed to exercise the jurisdiction vested in him, and this Court can rectify the error by passing a suitable order.
12. Considering that the application could not be taken cognizance of unless the requisite court-fee was paid, the purpose shall be served by setting aside the Impugned order and making it clear that the application shall be deemed to be still pending. Further action shall be taken by the Munsif after court-fee has been made good within the time to be allowed for the purpose.
13. The revision is hereby allowed ex parte with costs and the order under revision is set aside. The application of the defendants-applicants for the separation of their share shall be deemed to be still pending and shall now be disposed of in accordance with the law.
II/VGW/R.G.D
14. Revision allowed.