• Partition suit related questions

1)my father filled a partition suit case against a co owner 4 year back in district court.all the witness process completed.now court fixed date for argument.in this situation can my father withdraw the suit now??

2)after the preliminary decree passed in partition suit either court itself start the process of final decree by appointment of a commissioner or an appeal to made to the court by plantif to start of process of final decree by metes and bound ?
3) after the preliminary decree is there any gap of time given by court for appeal ??

4)plantif or defendant who can appel to court for start for final decree process??is it the only right of plantif ?!
Asked 4 years ago in Civil Law

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24 Answers

1. Yes he can withdraw.

2. You question is not very clear.

3. There is no gap per se.

4. Yes it is the right of the plaintiff.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1)my father filled a partition suit case against a co owner 4 year back in district court.all the witness process completed.now court fixed date for argument.in this situation can my father withdraw the suit now??

Answer: Yes your father can withdraw his suit at any time, provided he gives a reasonable answer to the court. Or the reasonable answer need not be given, which again depends to the facts and circumstances of the case. If the case is mutually settled then only withdraw the suit;

2)after the preliminary decree passed in partition suit either court itself start the process of final decree by appointment of a commissioner or an appeal to made to the court by plantif to start of process of final decree by metes and bound ?

Answer: Once a decree is passed, the final order/judgement is still awaited right? Then you cannot withdraw the case. You will have to wait till the court passes a final order/judgment;

3) after the preliminary decree is there any gap of time given by court for appeal ??

Answer: There is 30 days to file appeal. If more than 30 days then condonation of delay can be sought to dissolve the period of limitation;

4)plantif or defendant who can appel to court for start for final decree process??is it the only right of plantif ?!

Answer: The party which is dissatisfied with the decree can file an appeal in court.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Your father is at liberty to with draw suit at stage of arguments

2) any of parties can file appeal against preliminary decree

3) you have to apply to court for appointment of commissioner for division of propertyby metes and bounds

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Yes, your father withdraw the suit at any stage, but not at all serve or meet purpose of your father. With regard to preliminary decree, after preliminary decree fdp will file after completion of appeal period and within 2 years from the date of decree. Plantiff or Defendants can file fdp there is no bar. All the best.

C. V. Jadhav
Advocate, Bangalore
545 Answers
18 Consultations

4.7 on 5.0

1. If parties have settled the matter then the suit can be disposed of by filing consent terms. This can be done at any stage

2. If suit withdrawn now then court may impose cost on the party seeking withdrawal

3. In a partition suit, all parties are considered plaintiffs.

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

For first query yes your father can withdraw proceedings by filing a memo or application for withdrawal of suit.

After preliminary decree you need to file a fresh petition under FDP to enforce the preliminary decree order by court.

Appeal needs to be preferred within 90 days from order of lower court. Either defendant or plaintiff can initiate final decree proceedings or any person who is getting benefit out of preliminary decree of court.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1. There is no time limit to withdraw the suit. He can even stop attending the suit so it gets dismissed for default.

2. Yes, once preliminary decree is passed unless the same is set aside final decree is bound to be passed by partitioning the suit property by metes and bound.

3. yes 30 days for appeal.

4. Anyone who is party to the suit being arrived by the decree can prefer an appeal.

If the reason for withdraw is shared further advice could be given.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

If your father does not attend court decision would be pronounced by court based on evidence on record

Suit would not be dismissed

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

No since your side evidence is completed only you people need to complete arguments even if your father does not attend court the advocate may conclude his arguments unless instructed by you people to withdraw suit. The case will not be dismissed and it will also be not ex parte.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1. Yes the suit can be withdrawn.

2. No we have to fule for the final decree there is no automatic procedure.

3. An appeal can be made from preliminary decree before the higher court.The court doesn't give time as such but an appeal.can preferred at earliest within limitation .

4.Decree holder can start it can be plaintiff or defendant bht since in partition suit if decree is in favour of plaintiff partition is done plaintiff can intiaite .

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Sir your father advocate can be present, gurjar if he is not present then court may adjourn matter to next date. It can dismiss for default.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

This is in further response to you:

1. Your father need not appear in the case, his legal representative;

2. Decree only decides the rights of the parties;

3. The final order/judgment decides the case for finality and dispose of the same;

4. Therefore make sure somebody appears for the entirety of the case otherwise the decree order could be reversed.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

If he is the sole plaintiff then the suit is goring to be dismissed for default unless other defendants applies to court to transpose them as plaintiff so they can carry on the suit.

transposition of defendant as plaintiff is permissible in partition suit.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

If the stage is hearing there is no need to attend the court. But if the stage is giving evidence / or case posted for list then you father must attend before the court and tender his evidence. Other wise the suit will dismissed on default.

In a partition suit has two stage. First one preliminary and second one is final and decree is known as preliminary decree and final decree. first stage decides

whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as `decree' under Order 20 Rule 18(1) and termed as `preliminary decree' under Order 20 Rule 18(2) of the Code.

The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2)

when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing dates for further proceedings till a final decree is passed. It is the duty and function of the court. Performance of such function does not require a reminder or nudge from the litigant. The mindset should be to expedite the process of dispute resolution.

All the stage has liberty to file appeal by the infringed parties in the suit.

Ajay N S
Advocate, Ernakulam
3991 Answers
93 Consultations

5.0 on 5.0

The court would direct final decree be drawn by appointment of commissioner for division of property by metes and bounds

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Plaintiff had to file a separate FDP suit to get the partition enforced which was granted in preliminary decree by court by appointment of commissioner. Court suo moto will not initiate proceedings.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

After the preliminary decree any person can file final decree. Court will not sumo to take a final decree proceedings. In final decree appoint a commissioner with surveyor and measure out the property and partition the property with meets and bound s

Ajay N S
Advocate, Ernakulam
3991 Answers
93 Consultations

5.0 on 5.0

Court does not suo motu start final decree proceedings. It is done on the application of the parties.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

if he does not appear then the exparte judgment will be passed

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

No fresh petition is required to be filed

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. Yes your father, if desirous of withdrawing the suit even before judgment, can very well do so by filing a memo to dismiss the same as not pressed.

2. The plaintiff has to file a petition for appointment of commission and for final decree as well.

3. If the aggrieved party wants to prefer an appeal against the preliminary decree, they can do it within 30 days from the date of judgment.

4. Plaintiff only approached the court for relief and not the defendant hence it is the plaintiff who has to initiate process for FD.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

Your father's advocate will be representing the case in case your father is not appearing as party in person.

The arguments will be made by our advocate and not your father.

If your advocate reports no instructions and your father is not appearing before court then first the court will send notice to your father and if he is not turning up then the court will dismiss the suit

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

my question is that after preliminary decree court it self start for final decree process or plantiff have to file a petition to start fdp process ?? what is the rule??

There is no time limit to start the process for final decree, it can be done at any time

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

Sir an application has to be made to court for the final decree after the preliminary decree is made after the statutory limitation period for appeal is over.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

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