Case Note & Summary
The petitioner, the original decree holder, had filed final decree proceedings (F.D.B. No. 01/1999) which were dismissed for want of prosecution on 19/03/2012. The decree holder filed an application for restoration, which was dismissed by the impugned order. The petitioner challenged this dismissal. The High Court, relying on the Supreme Court judgment in Venu vs. Ponnusamy Reddiar (Dead) Thr. Lrs & Anr. (2017 SCC Online SC 518), held that a preliminary decree does not completely dispose of the suit; the suit continues until the final decree is passed. Therefore, there is no necessity for the litigants to file a separate application for final decree proceedings; it is the court's obligation to draw up the final decree. The court also noted that the Kerala High Court in Laxmi vs. A. Sankappa Alwa (AIR 1989 Kerala 289) held that after a preliminary decree, the court cannot dismiss the suit for default and should adjourn proceedings sine die. Consequently, the High Court allowed the writ petition, set aside the impugned order, and restored the final decree proceedings to the file of the trial court, directing it to proceed in accordance with law.
Headnote
A) Civil Procedure - Final Decree Proceedings - Obligation of Court - After preliminary decree, suit continues till final decree is passed; court has obligation to draw up final decree without requiring separate application by litigants - Held that the preliminary decree does not completely dispose of the suit and the court cannot dismiss the suit for default after preliminary decree (Paras 4-6).
Issue of Consideration
Whether the court has an obligation to draw up a final decree after a preliminary decree is passed, and whether the suit continues until the final decree is passed.
Final Decision
Writ petition allowed. Impugned order set aside. Final decree proceedings (F.D.B. No. 01/1999) restored to the file of the trial court. Trial court directed to proceed in accordance with law.
Law Points
- Preliminary decree does not completely dispose of suit
- suit continues till final decree is passed
- court has obligation to draw up final decree
- no need for separate application for final decree proceedings
Case Details
2018 LawText (BOM) (11) 79
WRIT PETITION NO. 7106/2016
Ms. K. Satpute for petitioner, Ms. A. Wanjari h/f Shri M. Anilkumar for respondent no. 1
Shri Shriram S/o Baliram Junghare
Hasinabai Piromohammad Ansari, Mahadeo Gangaram Kakade
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Nature of Litigation
Writ petition challenging dismissal of application for restoration of final decree proceedings
Remedy Sought
Petitioner sought restoration of final decree proceedings (F.D.B. No. 01/1999) which were dismissed for want of prosecution
Filing Reason
The final decree proceedings were dismissed for want of prosecution on 19/03/2012; the decree holder's application for restoration was dismissed by the impugned order
Previous Decisions
Final decree proceedings dismissed for want of prosecution on 19/03/2012; restoration application dismissed by impugned order
Issues
Whether the court has an obligation to draw up a final decree after a preliminary decree is passed
Whether the suit continues after a preliminary decree until the final decree is passed
Submissions/Arguments
Petitioner argued that preliminary decree does not completely dispose of the suit; suit continues till final decree is passed; no need for separate application for final decree; court has obligation to draw up final decree
Respondent no. 1 appeared through counsel; respondent no. 2 absent though served
Ratio Decidendi
A preliminary decree does not completely dispose of the suit; the suit continues until the final decree is passed. Therefore, there is no necessity for litigants to file a separate application for final decree proceedings; it is the court's obligation to draw up the final decree. The court cannot dismiss the suit for default after a preliminary decree.
Judgment Excerpts
The preliminary decree does not completely dispose the civil suit and the suit continues till the final decree is passed, and therefore there is no need to file an application and apply for the final decree proceedings by the litigants and it is an obligation on the Court to draw up the final decree.
The Court cannot dismiss a suit for default when once a preliminary decree is passed in a partition suit.
Procedural History
Original decree holder filed final decree proceedings (F.D.B. No. 01/1999). These proceedings were dismissed for want of prosecution on 19/03/2012. Decree holder filed application for restoration, which was dismissed by impugned order. Petitioner filed writ petition challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 20 Rule 18, Order 26
