Varghese Kalliath, J.

1. This Civil Revision Petition is against the finding of the court below holding that the suit is barred by res judicata. Plaintiffs are the revision petitioners. The suit is one for partition. On the averments in the pleadings, the defendants wanted the Court to raise an additional issue whether the Suit is barred by res judicata by reason of the decree in O.S. No. 13/66. The Court settled the above issue and allowed that issue to be tried as a preliminary issue. As I said earlier, the findings on this preliminary issue is against the plaintiffs. They are aggrieved. They filed this Civil Revision Petition.

2. It is admitted that there was an earlier suit -- O.S. No. 13/66 between the parties. This suit was also for partition of the property involved in the present suit. In this suit (O.S. No. 13/66) a preliminary decree was passed on 3-4-1968. The said judgment was appealed against in A.S. No. 376/68. The appellate decree was passed on 11-11-1971. So, there is a final and concluded decree between the same parties in respect of the suit property. The shares in the suit property due to the plaintiffs have been decided in the earlier suit O.S. 13/66. This composition of facts was urged by the defendants to say that the present suit is barred by res judicata.

3. Plaintiffs contended that though the judgment in A.S. No. 376/68 has become final, no final decree has been passed in the case and no final decree can be passed in the earlier suit because of the long lapse of time. In these circumstances, they said that the parties continued to be in joint possession of the property and so there is no bar of res judicata for filing a fresh suit, viz., the present suit. This contention was not accepted by the trial Court. Further it was pointed out that I,A. No. 271/86 filed on 19-2-1986 in O.S. No. 13/66 for passing a final decree is pending.

4. What is the effect of a preliminary decree and judgment in a partition suit in re-question of res judicata Is there any period of limitation for passing a final decree in a partition suit from the date of passing of the preliminary decree What are the obligations and duties of the Court and the parties, after passing a preliminary decree

5. A preliminary decree pursuant to a judgment in the suit is not a tentative decree or a judgment, but must in so far as the matters decided by it are concerned, be regarded as conclusive and final. It is true that a preliminary decree is not executable. The finality of a decree or judgment does not depend on the executability of a decree. There are cases where the Court passes decrees declaring the rights of parties. In such decrees there may not be any executable mandate Nevertheless, issues raised and decided in those cases, if not properly appealed against or reviewed, will be binding on the parties and will be conclusive between the parties in later suits. Section 97 of the C.P.C. is certainly an indication that matters decided by the Court in a preliminary decree should be regarded as embodying the final decision on those matters as far as the parties are concerned. The argument that a preliminary decree is incapable of effectuating a final relief and that further action on the preliminary decree is required to be taken for securing the relief to which a party is entitled to by the decision is no reason for not regarding that decision as final. The word decision implicates in common parlance a concluded opinion (see Strouds Judicial Dictionary 3rd Edn., Vol. 1, P. 743).

6. Certainly there is a decision when a preliminary decree is passed. The Code provides that such a decision is appealable. If a matter has not been finally decided, there is no point in allowing an appeal by the statutory provision. So I am of the view that the decision of the Court on disputed questions between the parties embodied in the judgment which is followed by a decree is a final decision in the sense that it is no longer open to question by either party except in an appeal, review or revision as provided by law. Take a case where in a partition suit, the defendant contended that an item of property is not partible since he has got exclusive title over the property by virtue of a sale deed This contention is met by a plea that the sale deed is invalid. These rival contentions are enquired into by the Court and a preliminary judgment is given on the issue holding that the property in question is partible and the sale deed will not enable the defendant to claim exclusive title over the property. Certainly this decision is binding on the party unless it is reversed in appeal or review or in any other manner as provided by law. It is not correct to say that since the decision has been rendered while passing a preliminary decree in a partition suit, the decision has no stamp of finality. I have no hesitation to hold that it cannot be urged that the decision is not final.

7. Now I turn to the central core of the dispute; which leads into the territory entitled res judicata estoppel per rem judicatam. I propose to consider first with convenient brevity the general head of res judicata.

8, Any party who is desirous of setting up a plea of res judicata, whether he is relying on such res judicata as a bar to his opponents claim, or as the foundation of his own, should establish all the constituent elements, broadly speaking the six proganda, viz.

"(i) that the alleged judicial decision was what in law is deemed such;

(ii) that the particular judicial decision relied upon was in fact pronounced, as alleged;

(iii) that the judicial tribunal pronouncing the decision had competent jurisdiction in that behalf;

(iv) that the judicial decision was final;

(v) that the judicial decision was, or involved, a determination of the same question as that sought to be controverted in the litigation in which the estoppel is raised;

(vi) that I he parties to the judicial decision, or their privies, were the same persons as the parties to the proceeding in which the estoppel is raised, or their privies, or that the decision was conclusive in rem."

Two theories support the principle of res judicata. These two theories are really speaking two aspects or sides of one and the same theory. The plea of res judicata is commonly justified first on the principle of general interest of the community in the termination of disputes, and in the finality and conclusiveness of judicial decisions and "secondly, the right of the individual to be protected from vexatious multiplication of suits and prosecutions at the instance of an opponent whose superior wealth, resources and power may, unless curbed by the principle of estoppel, weigh down judicially declared right and innocence". In New Brunswick Rail Co. v. British and French Trust Corporation Ltd 1939 AC 1 the House of Lords observed : --

"the doctrine of estoppel (per rem judicatam) is one founded on considerations of justice and good sense. If an issue has been distinctly raised and decided in an action, in which the parties are represented, it is unjust Land unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them."

9. I may confess that however the authorities especially the English authorities show the doctrine has been expressed to be subject to exceptions. Wigram V. C. observed in Henderson v. Henderson (1843) 3 Hare 100, the rule to apply "except in special cases". The Court investigated in that case where there were special circumstances ...... sufficient to take the case out of the operation of the general rule. Diplock L.J. in Mills v. Cooper (1967) 2 All ER 100 cleared the ground plainly by his observations in that judgment which can be taken as the top-notch modern statement of the law. Diplock, L.J. said : --

"..... a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors-in-title and was found by a Court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him."

Henderson v. Henderson was cited in Hoysted v. Taxation Commr. 1926 AC 1 55. I feel that rules applicable to issue estoppel and the proper exceptions to it are not static, they are in course of development. See Carl-Zeiss Stiftung v. Rayner and Keeler Ltd. (1966) 2 All ER 536 . But the trend of authorities clearly shows that the exceptions applying to special circumstances is designed to ensure that where justice requires the non-application of the principle, it shall not apply. In (1966) 2 All ER 536, Lord Upjohn said : --

"All estoppels are not odious but must be applied so as to work justice and not injustice, and I think that the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind."

See also Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. 1975 AC 581.

10. I may also refer to a recent decision of the Chancery Division in (1988) 3 All ER 977, Arnold v. National Westminster Bank, wherein Sir Nicolas Browne-Wilkinson V.C., after considering Henderson v. Henderson (1843(3) Hare 100) observed :--

"A subsequent change in the law which indicated that an earlier decision on a point sought to be reopened in a second action was wrong was capable of bringing the case within the exception to the doctrine of issue estoppel where the injustice of not allowing the matter to be relitigated outweighed the hardship to the successful party in the first action in having to relitigate the point. However, whether such a change operated to bring the case within the exception depended on the exact circumstances of each case. In the circumstances, Justice required the matter to be relitigated and the lessees were not estopped from raising the matter of construction of the rent review clause. Accordingly, the application to strike out the claim would be dismissed."

11. I have referred the above English decisions only to note that the doctrine of issue estoppel is not an absolute one and I am examining the application of the principle of res judicata in this case well informed of the above said precedential thinking on the principle of res judicata. I may say candidly that until I had occasion to refer to some English decisions, I had no doubt that the doctrine of issue estoppel was an absolute one though I was certain that it might be difficult to decide whether or not the earlier decision did expressly or impliedly decide the very issue sought to be litigated in the second action. I was certain that when once that had been demonstrated, a bar of res judicata necessarily arose.

12. In Venkata Reddy v. Pethi Reddy : AIR 1963 SC 992 [LQ/SC/1962/404] , reversing a decision of the Madras High Court in : AIR 1956 Mad 413 [LQ/MadHC/1955/290] , Mudholkar, J. said (at p. 995) :

"A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, insofar as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees -- a preliminary decree and a final decree -- the decree which would be executable would be the final decree: But the finality of a decree or a decision does not necessarily depend upon its being executable. The Legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the Court arrived at the earlier stage also has a finality attached to it. Section 97, C.P.C. clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree."

13. In Outram v. Morewood (1803) East 346, Lord Ellanborough, C J. said : --

"It is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The recovery itself...... is only a bar to the future recovery of damages for the same injury, but the estoppel precluded parties and privies from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them .... has been, on such issue joined, solemnly decided against them."

in Spencer Bower and Turner, res judicata, the learned author states : --

"Where the record of the decision -- by which is meant the formal record of the judgment or order bearing the seal of the Court or other proper authentication --contains in its text an express declaration of "the judicial opinion of the Tribunal on any question of law, or its finding on any issue of fact, whether by way of preface to the jussive, or prohibitive, part of the decision, or standing by itself, and unaccompanied by any grant of consequential relief, a form of judgment or order sanctioned by various statutes in certain specified classes of case and in Scotland by the law relating to actions of declarator, and now, generally, by the existing English rules of practice, there is no difficulty whatever in ascertaining the subject-matter of the decision, unless, of course, the declaration or finding is expressed in such ambiguous or indefinite terms as to make it impossible to say what was declared or found, or that any question or issue was decided at all And, the subject-matter of the first decision being readily and certainly ascertainable, there will be no difficulty in deciding whether the question previously decided is identical with that which is the subject of later litigation. If it is, there will be an estoppel in the later litigation; if not, there will be no estoppel."

14. The final result of the foregoing discussion is that the points decided in a preliminary judgment in a partition suit will estop the parties by the principle of res judicata from contending the same point in a later suit.

15. I turn to consider the question of obligation of the Court and the parties after a preliminary decree is given in a partition suit. I do not propose to discuss that matter elaborately. In my view a preliminary decree conclusively determines the rights and liabilities of the parties with regard to all or some of the matters in controversy in the suit although it does not completely dispose of the suit. Further proceedings await the suit to work out and adjust the rights of the parties. The Court cannot dismiss a suit for default when once a preliminary decree is passed in a partition suit. The parties to the suit have acquired rights or incurred liabilities under the decree. They are final, unless or until the decree is varied or set aside. The law being so, if the plaintiff does not take any steps after a preliminary decree is passed, the Court should adjourn the proceedings sine die with liberty to the parties concerned to end the torpor and suspended animation of the suit by activising it by taking appropriate proceedings. In Thomas v. Bhavani Amma 1969 K LT 729, Krishna Iyer, J. observed :

"It is correct law that in a suit for partition, after the passing of a preliminary decree it is the duty of the Court to pass a final decree and what is called an application for final decree is but a reminder to the Court of its duty. If so, it is the Courts duty to give notice to the parties."

16. Variations or changes in the shares on account of death of party/parties and other developments after the decree affecting the rights and liabilities of the parties can be determined if necessary by passing further preliminary decree or if no complicated questions are involved, the matter can be decided in the final decree proceedings itself. This aspect of the matter has been considered in Phoolchand v. Gopal Lal AIR 1967 SC 1470 [LQ/SC/1967/69] (at p. 1473), where the Supreme Court observed thus:--

"We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the Court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the Court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the Court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; and if there is a dispute in that behalf, the order of the Court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal................................. We see no reason why in such a case, if there is dispute, it should not be decided by the Court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties."

17. Learned Counsel for the petitioners contended that since the preliminary decree had become final as early as 11-11-1971, and for passing a final decree an application was filed only on 19-2-1986, the rights of the parties are barred by limitation. First of all the question of limitation is not a very material question in deciding the question of res judicata. The law of res judicata does not depend on the executability of the decree, it depends upon the decision on the point in controversy and it is rather the reasons and the findings and the final decision on the issue are the matters to be looked into for deciding the question of res judicata. Further I may say that since the application for passing the final decree is only a reminder to the Court that the Court is bound to pass a final decree, which has already passed a preliminary decree, it cannot be considered as an application for which the time limit is prescribed by the Limitation Act. A Full Bench of the Madras High Court in considering the question under Order 20, Rule 12, C.P.C. observed in Ramasubramanya v. Karimbil : AIR 1940 Mad 124 [LQ/MadHC/1939/352] :

"The fact that the decree-holder thinks it advisable to move the Court to commence the inquiry does not mean that he is making an application within the purview of Article 181. Whenever he moves the Court, the Court is bound by the rule to inquire and grant the decree-holder a final decree. In such cases the application is merely in the nature of a reminder of what is still to be done."

A Full Bench of the Bombay High Court in : AIR 1945 Bom 338 [LQ/BomHC/1944/98] (Ramabai Govind v. Anant Daji) observed :--

"Whether the decree contemplated in Order 20, Rule 18, Sub-rule (1) is in the nature of a preliminary decree or a final decree an application made by a party to a decree under Order 20, Rule 18(1), asking that the papers should be sent to the Collector for effecting a partition as directed in it is of the nature of a mere proceeding in the suit rather than an application to exequte the decree, and there is no period of limitation for making it."

18. In 1962 K LJ 169 (Parthasarathi Iyer v. Kesavan Nair), Velu Pillai, J. has said : --

"It is well established, that the suit continues till the passing of the final decree, and that an application for a final decree is not governed by Article 181 of the Limitation Act."

In AIR 1989 NOC 74 (Mad) (Krishnamurthi v. Gopal Gounder), Ratnam, J. considering a case of determination of mesne profits in the partition suit observed thus : --

"In a suit for partition, the mesne profits with reference to the properties forming the subject-matter of the suit, and referable to the properties, eventually allotted to the share of the successful party form part and parcel of the corpus itself and are as much in the hotchpot as the lands themselves and it would be most inequitable and unjust that despite a preliminary decree directing the ascertainment of mesne profits, the successful party should be driven to institute another suit separately for the mesne profits and it is certainly not the policy of the law to encourage multiplicity of proceedings. It is the duty of the Court not only to divide the several items of properties, but also the mesne profits derived therefrom, for the profits derived are also in the nature of property liable to be divided between the sharers. Viewed thus, in instant case, in the final decree that had been passed, there had been an omission to recognise the right of the petitioners herein to mesne profits, in which also they would be entitled to a share, as if that also formed part of the properties available for division. The circumstance that a final decree had been passed without reference to the relief of mesne profits granted under the preliminary decree, would not justify the refusal of the relief of ascertainment of mesne profits according to the terms of the preliminary decree. It is open for Court to ascertain same and pass the final decree."

19. No rule provides for the filing of an application by the party for passing a final decree. The preliminary decree will not dispose of the suit. The suit continues. The position being so, it is more appropriate for the Court to adjourn the case sine die. It is difficult for me to say that there is an obligation on the part of the Court to "pass the final decree after necessary enquiries" as observed by Paripoornan, J. in 1985 K LT 940 (Sreedevi Amma v. Nani Amma).

20. I am of the opinion that an application for drawing up a final decree in a partition suit is in no way an application contemplated under the Limitation Act. It is a reminder to the Court that something which the Court is obliged to do has not been done and so, such an application, is not governed by any provision of the Limitation Act. When once the rights of the parties have been finally determined in a preliminary decree, an application by a party thereto or the legal representatives, for effecting the actual partition in accordance with the directions contained in the preliminary decree can never be construed to be an application within the meaning of the Limitation Act. It shall be taken to be an application in a pending suit and therefore the question of limitation does not arise.

21. The Court below has considered all the relevant aspects of the matter and has decided the issue rightly. I do not see any error either on facts or on law. The Civil Revision Petition is only to be dismissed. I do so. No order as to costs.