Page 1

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

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 6

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 &

Page 7

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