Karnataka High Court
Sri Sannapalaiah @ Palaiah vs Sri Obaiah on 25 October, 2025
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NC: 2025:KHC:42360
RSA No. 503 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 503 OF 2013
(DEC/INJ)
BETWEEN:
1. SRI SANNAPALAIAH @ PALAIAH
S/O PALAIAH,
AGED ABOUT 89 YEARS,
AGRICULTURISTS,
R/AT HIREHALLY VILLAGE,
CHALLAKERE TALUK
Digitally
signed by 2. SRI R P OBAIAH
SUNITHA K S S/O PALAIAH
Location:
AGED ABOUT 54 YEARS,
HIGH COURT
OF AGRICULTURISTS,
KARNATAKA
R/AT HIREHALLY VILLAGE,
CHALLAKERE TALUK
3. SRI R P THIPPESWAMY
S/O PALAIAH,
AGED ABOUT 44 YEARS,
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RSA No. 503 of 2013
HC-KAR
AGRICULTURISTS,
R/AT HIREHALLY VILLAGE,
CHALLAKERE TALUK
...APPELLANTS
(BY SRI. V. LAXMI NARAYAN, SR. COUNSEL FOR
SRI. Y. H. VIJAY KUMAR, ADVOCATE)
AND:
SRI OBAIAH
S/O MUCHOBAIAH,
AGED ABOUT 59 YEARS,
AGRICULTURIST,
R/AT HIREHALLI VILLAGE,
CHALLAKERE TALUK - 577 522
...RESPONDENT
(BY SRI. S NAGARAJA, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 26.11.2012 PASSED IN
R.A.NO.20/2011 ON THE FILE OF ADDITIONAL DISTRICT
JUDGE, FAST TRACK COURT, CHITRADURGA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD
1.2.2011 PASSED IN OS.NO.14/2009 ON THE FILE OF SENIOR
CIVIL JUDGE, CHALLAKERE.
THIS APPEAL, COMING ON FOR FURTHER DICTATION,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC:42360
RSA No. 503 of 2013
HC-KAR
CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
1. The appellants have filed a Memo for withdrawal of the suit with a liberty to revive the Final Decree Proceedings in FDP No.27 of 1995 as the said FDP was closed without passing the final decree, where the 1st appellant's brother had filed a partition suit against the appellants in O.S. No.302 of 1970. The said suit was decreed and a Final Decree Proceedings in FDP No.27 of 1995 was filed. However, the said Final Decree Proceedings was closed on 17.10.1998, without passing the final decree.
2. The appellants filed a suit in O.S. No.14 of 2009 for declaration of title and permanent injunction.
3. Till the final decree is drawn, and a partition is effected by metes and bounds, the suit for declaration of title and permanent injunction is not maintainable.
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4. The learned counsel for the appellants filed a memo seeking leave of the Court to withdraw the suit with a liberty to revive the final decree proceedings on merits, keeping open all the contentions including the validity of the Will, alleged to have been executed by one Soncha Boraiah i.e. the brother of Appellant No.1 in favour of the defendant/respondent.
5. Admittedly, the preliminary decree was drawn in O.S. No.302 of 1970 and subsequently, the final decree proceedings was filed in FDP No.27 of 1995. The FDP Court without passing a final decree, has closed the final decree proceedings on 17.10.1998.
6. In view of the proposition laid down by this Court in the case of Basappa & Others v/s Kamala Kom.
Shivaputra Ligade & Others, in Civil Revision Petition No.100080 of 2018, decided on 24th February 2020, wherein this Court, considering the -5- NC: 2025:KHC:42360 RSA No. 503 of 2013 HC-KAR various decisions of the Hon'ble Apex Court, has held as follows:
"9. The points that arise for consideration are :
i) Whether Order II Rule 2 of the Code of Civil Procedure, 1908 is applicable to the Final Decree Petition?
ii) Whether trial Court can pass more than one final decree ?
Re. Point No.1 :
10. That, Order II Rule 2 of CPC reads as under :
2. Suit to include the whole claim:-
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim:-
Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs:- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except -6- NC: 2025:KHC:42360 RSA No. 503 of 2013 HC-KAR with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
A plain reading of the said provision clearly shows that the same is applicable only to a 'suit'.
11. That in a suit for partition, i.e. the passing of a preliminary decree does not have the effects of disposing of the suit. The suit continues to be pending until the partition i.e. division by metes and bounds takes place by passing of final decree. That, filing an application for drawing up of final decree is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking fresh relief (falling under Article 137 of the Limitation Act). That, filing an application for drawing up a final decree is only a reminder to the Court to do its duty to appoint a Commissioner and get a report and drawing a final decree in a pending suit so that the suit is taken to its logical conclusion. Further, there is no rule which provides for filing an application by the party for passing a final decree.
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12. In this regard, I would like to place reliance on the judgment of THOMAS vs. BHAVANI AMMA reported in 1969 KLT 729, Krishna Iyer J observed thus :
"6........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 court's duty to give notice to the parties".
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".
The Hon'ble Supreme Court considered the judgment of THOMAS supra, in VENU vs. PONNUSAMY REDDIAR (DEAD) THROUGH LEGAL REPRESENTATIVES AND ANOTHER reported in (2018) 15 SCC 254 (in Civil Appeal No.4187/2008 disposed of on 27.4.2017).
-8-NC: 2025:KHC:42360 RSA No. 503 of 2013 HC-KAR Further, I would like to place reliance on the judgment of the Hon'ble Supreme Court In SHUB KARAN BUBNA ALIAS SHUB KARAN PRASAD BUBNA vs. SITA SARAN BUBNA AND OTHERS reported in (2009) 9 Supreme Court cases 689 in SLP (C) No. 17932 of 2009 decided on August 21, 2009 wherein the Hon'ble Supreme Court in paragraph 20 has held as follows :
"20. 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."
14. Thus, what emerges from the said decisions is that; firstly, filing up of a final decree is not contemplated as per the Code of Civil Procedure; secondly, such a -9- NC: 2025:KHC:42360 RSA No. 503 of 2013 HC-KAR petition is in a nature of reminder to the Court passing a preliminary decree to finally dispose of the suit for passing a final decree. Hence, as filing of final decree petition is not at all contemplated under the Civil Procedure Code, there are no rules/restrictions regarding the form in which the said petition has to be filed.
15. A preliminary decree does not completely dispose off the suit. The suit continues till the final decree is passed. Suit is pending till the passing of the final decree. There is no necessity of filing an application to apply for final decree proceedings by litigants. There is an obligation on the part of the Court for drawing up of a final decree. In the present case, there was no necessity for the petitioners to file an application for drawing up of a final decree but the petitioners have filed a petition for drawing up of a final decree in respect of the agricultural lands. Mere filing an application for drawing up of a final decree is not a plaint. It is only a reminder to the Court to draw up final decree. There is no bar in filing more
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NC: 2025:KHC:42360 RSA No. 503 of 2013 HC-KAR than one application. A party by filing an application for drawing up of a final decree is not seeking any fresh relief. Thus, I am of the opinion that an application for drawing up of a final decree in a partition suit is not a plaint and the provisions of Order II Rule 2 of CPC is not applicable to the final decree petition.
16. Further, I would like to place reliance of the judgment of the Hon'ble Division Bench of this Court in the case of SMT. RUKMINI W/O.LATE ETHIRAJ vs. V UDAY KUMAR reported in ILR 2008 KAR 13 wherein one of the question that arose before the Hon'ble Division Bench of this Court was, "Whether a petition for final decree proceedings shall contain all the requirements as specified under Order VII Rule 1 of CPC?"
17. The said question was answered in negative by the Hon'ble Division Bench of this Court by holding inter alia that "a petition/application to draw final decree is not a plaint and need not contain the material facts as specified under Order
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NC: 2025:KHC:42360 RSA No. 503 of 2013 HC-KAR VII Rule 1 of CPC. Further, Order XX Rule 18 of CPC do not specify as to what are particulars to be mentioned in a petition/application accompanied by the preliminary decree passed in the suit is sufficient to draw a final decree"
18. Thus, in view of the principles laid down in the above said decisions, it is clear that : firstly, the petition/application filed for drawing up of a final decree is not a plaint, it is only a reminder to the Court to draw final decree and secondly, the provisions of Order II Rule 2 of CPC is applicable only to a suit and not to a final decree petition.
19. The contention of the learned counsel for respondents No.16 to 18 that the second petition for drawing up of a final decree is hit by Order II Rule 2 of CPC, cannot be accepted for the reasons stated above. Hence point No.1 is answered in negative holding that Order II Rule 2 of CPC is not applicable to a final decree petition.
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NC: 2025:KHC:42360 RSA No. 503 of 2013 HC-KAR Re :Point No.2 :
20. The second point for consideration in this appeal as to, 'Whether the trial Court can pass more than one final decree?' The said issue has been dealt with by the Hon'ble Apex Court in the case of RACHAKONDA VENKAT RAO vs. R.SATYA BAI reported in (2003) 7 SCC 452, wherein the Hon'ble Supreme Court has held that the Court can pass more than one final decree.
Further, in the case of HASHAM ABBAS SAYYAD vs. USMAN ABBAS SAYYAD reported in (2007) 2 SCC 355 the Hon'ble Supreme Court has held in paragraph 7 as, "Preliminary decree declares the rights and liabilities of the parties. However, in a given case a decree may be both preliminary and final". Further in paragraph 8 of the said judgment, it is held as, "There can be more than one final decree. A decree may be partly preliminary and partly final" .
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21. Hence, in view of the law laid down by the Hon'ble Apex Court that there may be more than one final decree in a suit for partition and in view of the aforesaid fact, point No.2 is answered in affirmative holding that in a suit for partition and separate possession, Court can pass more than one final decree.
22. In the present case, the trial Court has passed a preliminary decree in respect of the house and agricultural land. The petitioners have earlier filed an execution petition which was treated as a FDP in respect of the house properties and the trial Court was pleased to pass a final decree in respect of the house property but the agricultural properties were not the subject matter of earlier final decree proceedings. The petitioners have now filed a final decree petition for drawing a final decree in respect of the agricultural lands. As held by the Hon'ble Apex Court unless and until final decree is passed and the allottees of the shares are put in possession of the respective properties, the partition is not complete. As observed above, there is no bar for
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NC: 2025:KHC:42360 RSA No. 503 of 2013 HC-KAR drawing up of more than one final decree."
7. Thus, in view of the above proposition that, until a final decree is drawn, there is no provision for filing a Final Decree Proceedings and till a final decree is passed, the suit is deemed to have been continued, in view of the same, the suit filed by the plaintiffs is not maintainable. However, the plaintiffs have sought permission to withdraw the suit with a liberty to agitate their grievances in the Final Decree Proceedings, including the validity of the Will.
8. The Memo dated 25.10.2025 is placed on record.
9. The plaintiffs are permitted to withdraw the suit.
10. In view of the withdrawal of the suit, nothing survives for consideration in this appeal. Accordingly, the appeal is dismissed, reserving liberty to the parties to revive the Final Decree Proceedings in FDP No.27 of 1995 and all the contentions of the parties, including the validity of the Will, are kept open.
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11. It is made clear that the FDP Court is directed to dispose of the Final Decree Proceedings without being influenced by any observations made in the impugned judgments passed by the courts below and pass an appropriate order in accordance with law.
12. In view of dismissal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are accordingly disposed of.
Sd/-
(ASHOK S.KINAGI) JUDGE RK List No.: 2 Sl No.: 1