(PRAYER: Civil Revision Petition filed under Article 115 of Civil Procedure Code against the order and decreetal order dated 20.02.2001 and made in I.A.No.237 of 2000 in O.S.No.330 of 1992 on the file of the District Munsif Court, Sattur, and praying to set aside the same.)

1. The Revision petitioners 1 to 4 have filed the present Civil Revision Petition as against the order dated 20.02.2001, in I.A.No.237 of 2000 in O.S.No.330 of 1992 passed by the learned District Munsif, Sattur, praying permission of the trial Court to implead the petitioners 2 to 5 as legal representatives of the deceased plaintiff as per Order 22 Rule 3 and Section 151 of Code of Civil Procedure.

2. The trial Court viz., learned District Munsif, Sattur, while passing orders in I.A.No.237 of 2000 in O.S.No.330 of 1992 on 20.02.2001 has among other things observed that the I.A.No.237 of 2000 filed by the Revision Petitioners/Proposed Plaintiffs 1 to 4 under Order 22 Rule 3 and Section 151 of the Code of Civil Procedure, is hit by the plea of a limitation and resultantly, dismissed the application without costs.

3. Being dissatisfied with the orders so passed by the trial Court in I.A.No.237 of 2000 in O.S.No.330 of 1992 passed by the trial Court on 20.02.2001 the Revision Petitioners/Proposed Plaintiffs 1 to 4 (being the legal heirs of the deceased sole plaintiff) have projected the present Civil Revision Petition before this Court as an aggrieved persons.

4. The learned Counsel for the Revision Petitioners/Proposed Plaintiffs 1 to 4 urges before this Court that the impugned order dated 20.02.2001 in I.A.No.237 of 2000 in O.S.No.330 of 1992 passed by the trial Court on 20.02.2001 is patently an erroneous one in the eye of law because of the simple fact that there is no limitation enabling the necessary parties to file an application for passing of final decree in the partition suit and as a matter of fact, the trial Court ought to have allowed the I.A.No.237 of 2000 as per Order 22 Rule 10 of Civil Procedure Code even though the Revision Petitioners/Proposed Plaintiffs have filed the said I.A.No.237 of 2000 as per Order 22 Rule 3 of Civil Procedure Code.

5. In short, it is the contention of the learned Counsel for the Revision Petitioners that Order 22 Rule 3 and Rule 4 of Civil Procedure Code will not apply to the cases of death after the passing of preliminary decree as per the decision in Pooranchand and Others -Vs- Shriram and others reported in AIR 1963 Rajasthan 245.

6. The submission of the learned Counsel for the Revision Petitioners is that the trial Court has not appreciated the correct legal position as per Order 22 Rule 3 of Civil Procedure Code which deals with Procedure in case of death of one of several plaintiffs or of sole plaintiff and this has resulted in serious miscarriage of justice and therefore prays for allowing the Civil Revision Petition in furtherance of substantial cause of justice.

7. In the counter in I.A.No.237 of 2000 filed by the Eighth Respondent (in Civil Revision Petition and Tenth Respondent in I.A.No.237 of 2000 and adopted by the Respondents 6 to 9 therein). It is inter alia averred that the I.A.No.237 of 2000 filed by the Proposed Revision Petitioners/Proposed Plaintiffs 1 to 4 is hit by limitation and that the Revision Petitioners have failed to implead the other legal heirs of the deceased and as such I.A.No.237 of 2000 has to be dismissed.

8. It is not in dispute that the sole plaintiff (since deceased) has expired on 24.11.1993.

9. In support of the contention that for a death of plaintiff after passing of preliminary decree the ingredients of Order 22 Rule 3 of Civil Procedure Code do not apply, the learned Counsel for the Revision Petitioners relies on the decision Pooranchand and Others -Vs- Shriram and others reported in AIR 1963 Rajasthan 245 wherein it is laid down as follows:

O.22 R.3 does not apply to cases of death of the plaintiff after the preliminary decree. After the preliminary decree the right to sue does not survive and there can be no abatement of the suit in such a case. AIR 1930 All 779 and AIR 1931 All 490(FB), Dissented from; AIR 1928 Mad 914 [LQ/MadHC/1928/54] (FB)and AIR 19409 Bom 318 and AIR 1942 Pat 340 and AIR 1945 Pat 380 [LQ/PatHC/1945/29] and AIR 1947 Nag 75 and 75 and AIR 1952 Cal 579, [LQ/CalHC/1952/8] Rel.on

He also seeks in aid of the decision of the Honourable Supreme Court in Shub Karan Bubna alias Shub Karan Prasad Bubna -Vs- Sita Saran Bubna and others reported in 2009 9 SCC 689 [LQ/SC/2009/1719] at page 690 whereby and where under it is observed thus:

Once a court passes a preliminary decree, it is the duty of the court to ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree as to the manner of division. This duty in the normal course has to be performed by the court itself as a continuation of the preliminary decree.

There is a fundamental difference between mortgage suits and partition suits. A preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in the event of non-payment of the amount. When the amount is not paid the plaintiff gets a right to seek a final decree for foreclosure or for sale. On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court. In fact, several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree. Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage suit. Consequently an application for a final decree in a mortgage suit is different from an application for final decree in partition suits.

10. The learned Counsel for the Revision Petitioners invites the attention of this Court the decision of the Ramasamy Reddiar and others -Vs- Ponnusamy Reddiar reported in (2008) 1 MLJ 413 wherein it is held that there is no limitation for filing final decree application in law.

11. Yet another decision of this Court is relied on the side of the Petitioners in Varadappa Gounder and others -Vs- Karuppa Goundar reported in 1994 MLJ 370 wherein it is held that as follows:

A Full Bench of this Court has held in Perumal Pillai -vs- Perumal Chetty, 55 M.L.J 253 that O.22, Rules 3 and 4, Civil Procedure Code do not apply to cases where a preliminary decree was passed and before the passing of the final decree, the plaintiff died and a petition was filed for getting impleaded as the legal representative of the deceased plaintiff. The ruling squarely applies to the facts of this case.

12. At this juncture, this Court worth recall the decisions in Morasa Anjaiah -Vs- Kondragunte Venkateswarlu and other, AIR 1993 AP 156 [LQ/TelHC/1992/25] wherein it is held hereunder:

a partition suit does not abate even if legal representatives are not brought on record.

13. It is useful to refer to Order 22 Rule 3 of Code of Civil Procedure which speaks of the Procedure in case of death of one or several plaintiffs or of sole plaintiff, and the same runs as follows:

3.Procedure in case of death of one of several plaintiffs or of sole plaintiff.-

(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the decreased plaintiff.

14. That apart as far as Order 22 Rules 3 and 4 of Code of Civil Procedure are concerned it is to be pertinently pointed out by this Court as per the ingredients of the aforesaid rules an automatic abatement is also provided. However, Rule 10 of Order 22 of Code of Civil Procedure does not have any such procedure. If an party who is acquired the interest by means of devolution gets a right to prosecute the suit, the suit is in his hands and the said suit is not in use suit under Rules 3 and 4 there is an automatic abatement but as per Rule 10 of Order 22 the legislature has not enunciated any such procedure in the event of failure to apply for leave of Court to continue the prosecution of a case by or against a person upon whom the interest has deviated as per the decision in Dhurandhar Prasad Singh -Vs-Jai Prakash University reported in AIR 2001 SC 2552 [LQ/SC/2001/1476] .

15. On a careful consideration of the contention advanced on behalf of the Revision Petitioners and also in the light of an established facts that a partition suit does not abate even a legal representatives are not brought on record this Court comes to an inevitable conclusion that the view taken by the trial Court to the effect that I.A.No.237 of 2000 filed by the Revision Petitioners is hit by a limitation is not quite tune of the well established the principle of law and as such this Court is perforced to interfere with the orders passed by the trial Court and accordingly allows the present Civil Revision Petition in the interest of justice leaving the parties to bear their own costs.

16. In the result the Civil Revision Petition is allowed, leaving the parties to bear their own costs and consequently the order passed in I.A.No.237 of 2000 in O.S.No.330 of 1992 by the trial Court is set aside for the reasons assigned by this Court.