HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR CCCA No. 63 of 2003 and CCCA (SR) No.10303 of 2008 Common Judgment: (per Hon’ble Sri Justice V. Eswaraiah) Heard both the counsel. The appellants in both the appeals are the defendants in the suit in O.S. No. 618 of 1999 filed by the first respondent herein, namely Gaddam Radhakrishna Babu Naidu for partition of the plaint schedule property bearing House No.2-1-209, admeasuring 270 sq. yards, situated at Nallakunta, Hyderabad, comprising of ground and first floor with Madras roof. The learned II Additional Chief Judge, City Civil Court, Hyderabad, passed a preliminary decree on 12.10.2001 in O.S. No. 618 of 1999 and against which CCCA No.63 of 2003 is filed by the defendants. Thereafter, final decree was also passed, vide orders dated 02.11.2007 passed in I.A. No.1578 of 2002 in O.S. No.618 of 1999, against which CCCA (SR) No.10303 of 2008 is filed. Insofar as CCCA No.63 of 2003 is concerned, it is stated that the defendants have remained ex parte and without giving them reasonable opportunity of hearing the preliminary decree was passed in O.S. No. 618 of 1999. Though the preliminary decree was passed ex parte, there is no dispute with regard to entitlement of shares by the plaintiff and the defendants and the property is liable to be partitioned in four equal shares and one such share is to be allotted in favour of the plaintiff and the remaining three shares be allotted in favour of defendants 1 to 3 equally. The only plea taken by the learned counsel for the appellants/defendants is that, in fact the plaintiff has relinquished his share and right in respect of the plaint schedule property in favour of the defendants. If that be so, the said plea can be taken into consideration while considering the final decree proceedings. Be that as it may, as there is no infirmity or illegality in passing the preliminary decree in O.S. No.618 of 1999, we are of the opinion that CCCA No.63 of 2003 is liable to be dismissed. Insofar as CCCA (SR) No.10303 of 2008 is concerned, learned counsel for the appellants/defendants stated that as against the preliminary decree passed in O.S. No.618 of 1999, the defendants initially filed CCCA No.63 of 2003 and this Court, by an order dated 24.02.2003 passed in CCCAMP No.4380 of 2003, granted interim stay, and thereafter, by an order dated 24.10.2003, the said interim order was made absolute only to the extent of passing of final decree subject to the condition of the defendants paying costs within a period of four weeks. The contention of the learned counsel for the appellants is that in fact the preliminary decree was passed without costs, and therefore, the question of paying any costs by the defendants does not arise. It is further contended that a representation was made before the Court below by the counsel appearing for the plaintiff that the conditional order of this Court was not complied with by paying costs, therefore the Court below proceeded to pass the final decree and in those facts and circumstances the defendants were unable to participate in the final decree proceedings. Admittedly, before passing the final decree no enquiry was conducted and the application filed by the plaintiff for passing the final decree was allowed only on the ground that the costs said to have been awarded while passing the preliminary decree were not paid by the defendants. A perusal of the record would show that the Court below passed the preliminary decree without costs. When the Court below did not award any costs while passing the preliminary decree, we are of the opinion that there was no any default on the part of the defendants in not paying the costs. The lower Court ought to have conducted an enquiry before passing the final decree and without giving any reasonable opportunity and without considering the rival contentions the final decree was passed. It is further stated that in fact the defendants have purchased the share of the plaintiff under an unregistered sale deed. We are not inclined to express any opinion with regard to validity or otherwise of the transfer of the property by relinquishing the rights through an unregistered sale deed. However, since the defendants have not participated in the final decree proceedings and no enquiry was conducted before passing the final decree, we are of the opinion that the impugned order is liable to be set aside and the matter be remanded to the lower Court for passing a final decree after giving reasonable opportunity of hearing to all the parties. In view of the above discussion, CCCA No.63 of 2003 is dismissed. However, CCCA (SR) No.10303 of 2008 is allowed and the order dated 02.11.2007 passed in I.A. No.1578 of 2002 in O.S. No.618 of 1999 is set aside and the matter is remanded to the lower Court with a direction that after giving reasonable opportunity of hearing to all the parties, shall pass a final decree in accordance with law. In the circumstances, no costs. ______________________ V. ESWARAIAH, J. ___________________ B. CHANDRA KUMAR, J. Date: 14.06.2011 Nsr