caselaws
Supreme Court of India
Venu vs Ponnusamy Reddiar (Dead) Thr. Lrs … on 27 April, 2017Author: …………….J.
Bench: Arun Mishra, Amitava Roy
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s). 4187 OF 2008
VENU Appellant(s)
VERSUS
PONNUSAMY REDDIAR (DEAD) THR. LRS & ANR. Respondent(s)
O R D E R
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
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 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 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
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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