THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR S.A.No.580 of 1999 JUDGMENT: This appeal is at the instance of the plaintiff who is aggrieved by the disposal of suit for partition in O.S.No.247 of 1986 on the file of the District Munsif, Atmakur, Nellore District. While the said suit was decreed by the trial Court under the judgment and decree dated 12.04.1994, appellate Court has dismissed the said suit under the impugned appellate judgment. Heard both the leaned counsel. The present suit for partition came to be filed by the appellant in the following circumstances: Appellant and the respondent and two others are sisters. They all succeed to the plaint schedule properties, which are subject matter of earlier suit for partition O.S.No.148 of 1971 on the file of the Subordinate Judge, Nellore. The said suit ended in a preliminary based upon a compromise entered into by the parties under Order 23, Rule 3 CPC. Under the said compromise decree, dated 24.9.1974, each of the daughters including the plaintiff and the defendant were held to be entitled to 1/4th share in the estate of their parents. The present suit schedule is a house property which was also subject matter of the said compromise decree as shown in item No.16 in ‘A’ schedule therein. The said house property is said to have been allotted to the plaintiff but remained in possession of the defendant in the partition in which the compromise decree declares. However, seeking enforcement of the said decree, the present suit O.S.No.247 of 1986 was filed by the appellant before the District Munsif, Atmakur, seeking partition of the suit house. The defendant resisted the suit on the ground that the plaintiff had exchanged another item in the earlier compromise decree namely item No.19 by taking another item in Survey No.14 instead of Survey No.13 and in lieu thereof, relinquished her 1/4th share in the suit house. The said defence was not accepted by the trial Court and the suit was decreed, whereas the appellate Court under the impugned judgment rejected the said theory of relinquishment on the ground that there is no registered relinquishment deed. Appellate Court also was of the view that the present suit impugned the compromise in O.S.No.148 of 1971, which is impermissible under Order 23, Rule 3(a) CPC. That is why the substantial question of law raised under ground No.4 of the memorandum of grounds is framed for consideration in this appeal: 1) Whether the lower appellate Court has not erred in invoking the Order 23, Rule 3(a) of C.P.C. to hold that separate suit is barred as Order 23 Rule 3(a) prohibits insisting of separate suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful and the suit instituted by the appellant is not at all for the said purpose. After hearing both the learned counsel, this Court was of the view that when a preliminary partition decree was passed in the earlier suit O.S.No.148 of 1971, a subsequent suit seeking relief of partition of one of the items, which was subject matter of the said preliminary decree is clearly not maintainable. Both the learned counsel when confronted with this query, very fairly and graciously submitted that in normal course after a preliminary decree for partition, a final decree application would lie. It is also not in dispute that a suit for partition is deemed to be pending till finally disposed of by passing of a final decree. Thus in earlier suit O.S.No.148 of 1971 in which a preliminary decree for partition was passed; is pending and at the stage of final decree application, another suit for partition by any of the parties could not be entertained by the Court. The finding of the lower appellate Court and the substantial question of law framed in this appeal with respect to the impression of the appellate Court that the present suit impugnes the earlier final decree is practically incorrect, as the earlier preliminary decree for partition based on the compromise is not challenged by any of the parties. I am, therefore, inclined to set aside the judgments of both the Courts below and dismiss the suit O.S.No.247 of 1986 by giving liberty to the petitioner to file application for final decree in O.S.No.148 of 1971 referred to above, if the plaintiff is so advised. Since the suit O.S.No.247 of 1986 is dismissed as not maintainable, the findings of the Courts below under the impugned judgments would not come in the way of either of parties for raising appropriate contentions in the final decree applications. Appeal accordingly is allowed and the suit O.S.No.247 of 1986 is dismissed. No costs. ____________________ VILAS V.AFZULPURKAR,J 9th September, 2010 PNV