Sunday, 5 May 2019

Whether limitation is provided for execution of preliminary decree for partition?

I am of the opinion that an application for
drawing up a final decree in a partition suit is
in no way an application contemplated under the
Limitation Act. It is a reminder to the Court
that something which the Court is obliged to do
has not been done and so, such an application,
is not governed by any provision of the
Limitation Act. When once the rights of the
parties have been finally determined in a
preliminary decree, an application by a party
thereto or the legal representatives, for
effecting the actual partition in accordance
with the directions contained in the preliminary
decree can never be construed to be an
application within the meaning of the Limitation
Act. It shall be taken to be an application in a
pending suit and therefore the question of
limitation does not arise.
Similar is the view taken by the Single Bench
of High Court of Punjab & Haryana in Naresh Kumar &
Anr. vs. Smt. Kailash Devi & Ors. [AIR 1999 Punjab
and Haryana 102] in which reliance has been placed

upon the decision of High Court of Madras in
Ramanathan Chetty v. Alagappa Chetty [AIR 1930 Mad.
528] in which it was held that until final decree is
passed in a partition suit, limitation will not come
into play because the suit continues, till final
decree is passed. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s). 4187 OF 2008

VENU Vs PONNUSAMY REDDIAR 

Dated:APRIL 27, 2017

Only question raised in the present appeal is
with respect to the limitation for execution of
preliminary decree for partition. In the instant
case, the application for execution of the decree
was filed after thirty years of the preliminary
decree. That too in the shape for the appointment
of an court Commissioner so as to carry out the
preliminary decree which has been passed on
23.11.1959. The application for the execution of
the decree was filed on 3.10.1989 i.e. after thirty
years.
Learned counsel appearing on the appellant has
submitted that since the application had been filed
for appointment of court commissioner, it ought to
be governed by provisions of Article 137 of the
Page 2
Limitation Act, 1963.
On the other hand, learned counsel appearing
on behalf of the decree holder has urged that in
substance an application has been filed for final
decree proceedings and the cost of the final
proceedings is paid then the preliminary decree is
executed, thus application for execution of
preliminary decree for partition could not be said
to be barred by limitation.
In our opinion a preliminary decree for
partition crystallizes the rights of parties for
seeking partition to the extent declared, the
equities remain to be worked out in final decree
proceedings. Till partition is carried out and
final decree is passed, there is no question of any
limitation running against right to claim partition
as per preliminary decree. Even when application is
filed seeking appointment of Commissioner, no
limitation is prescribed for this purpose, as such,
it would not be barred by limitation, lis continues
till preliminary decree culminates in to final
decree.
The matter is no more res integra. The
Page 3
Division Bench of the High Court of Calcutta in In
Bhusan Chandra Mondal vs. Chhabimoni Dasi,[AIR 1948
CALCUTTA 363] considered the question when a
preliminary decree was passed in a suit for
partition in courts, the court consider the
applicability of Article 181 of the Limitation Act,
1908 (in short 'the old Act') the court has laid
down thus :
“(6) Article 181 is the residuary Article
relating to applications. In a mortgage
suit it has been held that the application
for a final decree has to be made within 3
years by reason of Article 181,Limitation
Act. But those decisions are not helpful
because O.34 R.4 Civil P.C.expressly
requires the mortageee to make an
application for a final decree, either for
foreclosure or for sale. In a suit for
partition and/or accounts a party need not
make an application for making the decree
final. After the preliminary decree is in
such a suit has been passed it is the
usual practice for the plaintiff to make
an application for the appointment of the
Commissioner but there were no legal bar
in the court appointing the commissioner
suo motu and asking the plaintiff to
deposit the commissioner's fee in Court.
If he does not deposit the fees any other
party to the suit can do so and take upon
himself the carriage of the proceedings
if the plaintiff and none of the other
parties make the deposit the fact that the
court would not be able to dismiss the
suit is, however, another matter.
(7) We therefore do not see our way to
Page 4
accept the petitioner's contentions on this
point also.”
Similar is the view adopted by a Single judge
of the High Court of Kerala in Laxmi & Ors. vs. A.
Sankappa Alwa & Ors. [AIR 1989 KERALA 289] the logic
given by the High Court of Kerala that the
preliminary decree does not completely dispose of
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 the final decree
proceedings by litigants, then there is an
obligation on the court for drawing up a final
decree. The court had held thus :
“15.I turn to consider the question of
obligation of the Court and the parties after a
preliminary decree is given in a partition suit.
I do not propose to discuss that matter
elaborately. In my view a preliminary decree
conclusively determines the rights and
liabilities of the parties with regard to all or
some of the matters in controversy in the suit
although it does not completely dispose of the
suit. Further proceedings await the suit to work
out and adjust the rights of the parties. The
Court cannot dismiss a suit for default when
once a preliminary decree is passed in a
partition suit. The parties to the suit have
acquired rights or incurred liabilities under
the decree. They are final, unless or until the
decree is varied or set aside. The law being so,
if the plaintiff does not take any steps after a
preliminary decree is passed, the Court should
adjourn the proceedings sine die with liberty to
the parties concerned to end the torpor and
Page 5
suspended animation of the suit by activising it
by taking appropriate proceedings. In Thomas v.
Bhavani Amma, 1969 Ker LT 729, Krishna Iyer, J.
observed :
"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" as observed by
Paripoornan, J. in 1985 Ker LT 940 (Sreedevi
Amma v. Nani Amma).
20. I am of the opinion that an application for
drawing up a final decree in a partition suit is
in no way an application contemplated under the
Limitation Act. It is a reminder to the Court
that something which the Court is obliged to do
has not been done and so, such an application,
is not governed by any provision of the
Limitation Act. When once the rights of the
parties have been finally determined in a
preliminary decree, an application by a party
thereto or the legal representatives, for
effecting the actual partition in accordance
with the directions contained in the preliminary
decree can never be construed to be an
application within the meaning of the Limitation
Act. It shall be taken to be an application in a
pending suit and therefore the question of
limitation does not arise.
Similar is the view taken by the Single Bench
of High Court of Punjab & Haryana in Naresh Kumar &
Anr. vs. Smt. Kailash Devi & Ors. [AIR 1999 Punjab
and Haryana 102] in which reliance has been placed

upon the decision of High Court of Madras in
Ramanathan Chetty v. Alagappa Chetty [AIR 1930 Mad.
528] in which it was held that until final decree is
passed in a partition suit, limitation will not come
into play because the suit continues, till final
decree is passed. Reliance is also placed on a
decision of High Court of Peshawar in Faqir Chand v.
Mohammad Akbar Khan [AIR 1933 Peshawar 101(2)], in
which it has been observed that there is no
obligation of a litigant to apply for final decree
proceedings. As such there is no question of
application of the limitation. Another decision of
the High Court of Orissa had been referred in
Sudarsan Panda vs. Laxmidhar Panda [AIR 1983 Orissa
121] in which also similar view had been taken.
In the instant case, the other ground which
was taken by the appellant with respect to the
preliminary decree being worked out by way of
compromise. However, the factum of compromises has
not been found to be established. Thus there is no
satisfaction of the preliminary decree which had
been passed in the instant case. The decision in
Varatharajulu Reddiar vs. Venkatakrishna Reddiar &

Ors. [1967 (2) Madras Law Journal 342] is pertinent
in this regard, in which it has been observed that
in case parties had affected partition by metes and
bounds as per the preliminary decree, it would not
be necessary to undertake the final decree
proceedings but in the instant case, it has not been
found to be established that parties have worked out
their rights by mutual agreement. Thus the final
decree has to be drawn in accordance with law. We
appreciate the fairness with which the case has been
argued by the learned counsel appearing for the
appellant.
Thus we find no merit in this appeal which is
hereby dismissed. No order as to costs.
................J.
(ARUN MISHRA)
...............J.
(AMITAVA ROY)
NEW DELHI;
APRIL 27, 2017
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