Surjdeo Dubey And Anr. vs Kripanarayan Tiwary on 7 August, 1968

Patna High Court
Surjdeo Dubey And Anr. vs Kripanarayan Tiwary on 7 August, 1968
Author: T Nath
Bench: T Nath


Tarkeshwar Nath, J.

1. This appeal by the two substituted heirs of the defendant is directed against the order refusing their prayer for being substituted in place of Baijnath Dubey the plaintiff in Title Suit No. 107 of 1955.

2. The facts giving rise to this appeal are shortly these: Baijnath Dubey filed a

suit for partition of his 8 annas share in certain properties against Manki Dubey. A preliminary decree was passed by the trial Court. But there was an appeal against that decree in this Court (First Appeal No. 94 of 1957). After disposal of the first appeal a commissioner was appointed by the trial Court for making allotment of various properties. The commissioner submitted his report and that report was confirmed. On 28th March, 1963, the trial Court recorded an order in the ordersheet in the following terms:

“Let final decree be drawn upon filing non-judicial stamp of requisite value. The commissioner’s report shall form part of the decree”.

Prior to this order Manki Dubev had executed a deed of surrender in respect of certain lands on 1.11.1961, in favour of the appellants. On 13.11.1963, Baijnath Dubey as well executed a deed of surrender in favour of the appellants in respect of certain lands which were the subject-matter of that suit. On the same day Baijnath Dubey executed a deed of gift in favour of Kripanarayan Tiwary (respondent) describing him as his sister’s son. Baijnath Dubey the sole plaintiff died on 23.10.1964, and after his death Manki Dubey filed an application for substitution in place of Baijnath Dubey as he happened to be his brother, but no order was passed on that application. Subsequently Manki Dubey executed a will on 15-11-1966, in favour of the present appellants regarding his lands. It appears that Manki Dubey died some time after the execution of the said will. The appellants applied for substitution in place of Manki Dubey on the basis of the Letters of Administration granted to them in respect of the said will.

The respondent applied for substitution in place of Baijnath Dubey who had executed a gift in his favour and he made a further claim that he and his brothers should be substituted in place of Manki Dubey. The appellants objected to this and claimed to be the heirs of Baijnath Dubey as well. These applications for substitution were heard by the learned Subordinate Judge and he by his order dated the 24lh July, 1967, directed that the appellants would be substituted in place of Manki Dubey (defendant) whereas the respondent would be substituted in place of Baijnatb Dubev (plaintiff). The position thus is that this order was partly in favour of the present appellants and partly against them so far as their prayer for substitution in place of Baijnath Dubey was concerned. Being aggrieved by that part of the order which was against the appellants, they have filed this miscellaneous appeal,

3. Learned counsel for the appellants raised two points in this appeal. The first point was that the learned Subordinate Judge had become functus officio after passing the order dated the 28th March

1963, in the sense that there was an order for passing of the final decree and as such he had no jurisdiction to pass an order for substitution of the respondent in place of Baijnath Dubey. The second point was that the deed of gift relied upon by the respondent was not properly proved and it was a fraudulent deed. It will be convenient to deal with these points in the order in which they have been urged.

4. Learned counsel developed his argument on the first point in the following manner. He submitted that after the confirmation of the report of the pleader commissioner the trial Court had rightly passed an order for preparation of the final decree. But after that order, the Court could not entertain the application for substitution and no order could be passed by it on those applications. He pointed out that the drawing up of the decree was only a ministerial act which could be done by the office and the Court had nothing to do with it. He relied on the decision in Jamuna Rai v. Chandradip Rai, AIR 1961 Pat 178. The provisions of Order 22, Rules 3 and 10 were considered by their Lordships and the observations relied upon are as follows:

“An appeal from a preliminary decree for partition, in the absence of a single co-sharer of the land under partition, cannot proceed. If however, the preliminary decree has become final and thereafter and before the passing of the final decree a party dies, to such a case Rule 10 of Order 22 would apply and not Rule 3 of Order 22. If, however, the preliminary as well as the final decree both have become final and a party dies after the final decree, to such a case Rule 10, Order 22 also would not apply”.

According to this decision if there is already a final decree, then the person who derives any interest from a party dying after the final decree cannot take recourse to the provision of Order 22, Rule 10 of the Civil Procedure Code. The precise question which has been argued by learned counsel for the appellants did not arise in the case referred to above and learned counsel fairly conceded that the point urged by him did not come up for discussion in that case. If a final decree has been passed meaning thereby that the decree has been prepared, signed and sealed then, of course, the Court becomes functus officio and has no power to entertain an application either under Rule 3 or Rule 4 or Rule 10 of Order 22 of the Code of Civil Procedure but that is not the situation in the present case. It is true that an order was passed for the drawing up of the final decree but this was dependent on the filing of the non-judicial stamp of requisite value. Learned counsel admitted that non-judicial stamp had not been filed and the final decree had not been drawn up till the date of passing the order impugned in this case. After a

final decree is drawn up, it is open to the parties to file objection to the said decree and that objection can be considered before the decree is signed and sealed.

As regards the procedure relating to an objection to the decree prepared and the signing of the decree reference may be made to Rules 8 and 9 of Chapter V, Volume 1 the General Rules and Circular Orders (Civil) of this Court. This question can be considered from another point of view. Was it open to any of the parties to obtain a certified copy of the final decree on the 28th of March 1963? The answer must be in the negative inasmuch as the final decree was not ready on that date and had not been drawn up.

There is still another answer to the contention of the learned counsel for the appellants. It is not open to a party to file an appeal competently in a superior Court against the final decree unless a final decree has been actually prepared and signed. A similar question arose in Jotindra Mohan Tagore v. Bejoy Chand Mahatap, (1905) ILR 32 Cal 483 and it was held that a suit for partition, even when the report of the commissioners is confirmed and a decree is directed to be drawn up in accordance therewith, is a pending litigation until the Court signs the final decree. Their Lordships observed as follows:

“In our opinion the lower Court was competent to make the order at any time during the pendency of suit, and it was a pending litigation until the Court signed the final decree. A decree to be operative must under the Indian Stamp Act, be engrossed on paper as required by that Act, and until the Judge signs the decree so engrossed, it cannot be said that the suit has terminated. The order confirming the Commissioner’s report in this case must be taken to be an interlocutory order made in the course of the suit and preparatory to the order that might determine finally the rights of the parties”.

The view taken in this case was followed in Lakshan Chunder Dey v. Smt. Nikunjamoni Dassi. 27 Cal WN 755 = (AIR 1924 Cal 188). In the present case the final decree not having been drawn up and signed the Court was perfectly justified in entertaining the application for substitution filed by the respondent and passing order on that application. I thus do not find any merit in the first contention and it must be over ruled.

(In paragraph 5 the parties agree that the larger question as to who is the heir of Baijnath Dubey should be left open. The judgment then continues).

6. In the result, the appeal is dismissed subject to this that the larger question as to who is the heir of Baijnath Dubey is left open and the order of the trial Court substituting the respondent in place of Baijnath Dubey will govern the parties only so far as Title Suit No. 107 of 1955 is con-

cerned.     In   the  circumstances  of  the   pre
sent case  parties will bear their own costs
of this Court. 


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