Partition
VAKEELSAB
(Querist) 01 November 2014
This query is : Resolved
Hi Every one..
I require your advice to understand partition proceedings. My query is
If A filed a suit against B for partition and it was dismissed by trail court. Subsequently it was decreed in 1st appeal and then confirmed by 2nd appeal in favour of A. The first appelet court passes preliminary decree specifying the share of the A alone. A files a Final decree petition in terms of the preliminary decree before Trail Court. During the pend ency of the final decree petition B approches 1st appelet court and files a petititon to amend the preliminary decree for specification of his share. This fact was not brought before the trail court and final decree is passed by the trail court passing final decree infavour of A. Now B files a fresh final decree petition. My question is whether passing of the final decree is correct? whether is it mandatory that A should inform the court that the decree is amended ( actually not ammended but missing shares are specified).
Please clarify
Regards
Rohan
Devajyoti Barman
(Expert) 01 November 2014
If the preliminary decree is modified by appeal court then executing court will have to make such remark and ask the commissioner to submit report on modified share of A by metes and bounds.
ajay sethi
(Expert) 01 November 2014
agree with Mr Barman
Rajendra K Goyal
(Expert) 01 November 2014
Agree with the expert Devajyoti Barman.
malipeddi jaggarao
(Expert) 01 November 2014
You got the guidance from the expert Shri Barman.
R.K Nanda
(Expert) 01 November 2014
no more to add.
VAKEELSAB
(Querist) 04 November 2014
The thing in the appeal the court has given plaintiffs and defendants share but only plaintiffs share was specified. Subsequently the plaintiff filed final decree as his share is specified and the final decree is passed. In this context, the defendants remained ex parte in the final decree. But the defendants filed a petition requesting the court to specify their shares in preliminary decree as there is no variation in shares during the pendency of the final decree it was allowed. In the meanwhile the final decree of the plaintiff is passed. The question is whether such final decree is sustainable as the share of the defendants is mentioned by amendment but the same was not brought to the notice of the executing court. Any how the defendants have filed another final decree petition for allotment of their share? A bit confused about the final decree passed against the plaintiffs, whether correct or not.
Sirs Please clarify
T. Kalaiselvan, Advocate
(Expert) 04 November 2014
The plaintiffs have filed the suit seeking partition and separate possession of their shares alone. They cannot induce the court to allot shares to the defendants respectively. If the defendants want their shares to be allotted in the same suit, they should have made a counter claim by paying appropriate court fee for the purpose. In fact they chose to remain exparte in the final decree proceedings filed by the plaintiff, the reason not known. The defendants had opportunity to put forth before the lower court in the final decree proceedings about the fact of the plaint being amended by the appellate court specifying the defendants' share in the property to be divided by metes and bounds and allot them their respective share. However, the fresh application for allotment of their share by the defendants will be maintainable.
VAKEELSAB
(Querist) 06 November 2014
Wat is the impact of amendment to final decree passed.
