As found earlier, no executable final decree has been drawn working out the rights of the parties dividing the properties in terms of the shares declared in the preliminary decree. The preliminary decree had only declared the shares of the parties and properties were liable to the partitioned in accordance with those shares by a Commissioner to be appointed in this behalf. Admittedly, no Commissioner was appointed and no final decree had been passed relating to all.
Recently, albeit on a different factual backdrop, this Court in Hasham Abbas Sayyad v. Usman Abbas Sayyad and ors. (2007) 2 SCC 355 opined:
9. A final decree proceeding may be initiated at any point of time. No limitation is provided therefor. However, what can be executed is a final decree, and not a preliminary decree, unless and until final decree is a part of the preliminary decree.
For the reasons aforementioned, Articles 136 and 137 of the Limitation Act, 1963 will have no application.
Supreme Court of India
Bikoba Deora Gaikwad & Ors vs Hirabai Marutirao Ghorgare & Ors on 27 May, 2008
Citation;2009(1)MhLj582, (2008)5MLJ1388(SC), 2008(4)MPHT518(SC), 2009MPLJ275(SC), 2008 105 RD336, RLW2008(2)SC1780, 2008(8)SCALE692, (2008)8SCC198
Bench: S.B. Sinha, Lokeshwar Singh Panta
REPORTABLE
