Order R. V. Raveendran, J.: Reportable
Order R. V. Raveendran, J.: Reportable
Order R. V. Raveendran, J.: Reportable
Vs.
ORDER
R. V. RAVEENDRAN, J.
The first respondent and his mother filed a suit for partition against
petitioner and two others in the year 1960 in the court of the First
their one-third share in the plaint schedule properties and for rendition of
accounts. The suit was in respect of three non-agricultural plots and some
of the plaintiffs in the said plots and a final decree be drawn up through
and bounds.
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the Patna High Court which was dismissed on 29.3.1974. The first
dismissed by the trial court holding that once the rights/shares of the
Court order dated 15.1.2009. The petitioner has filed this special leave
petition seeking leave to appeal against the said decision of the High
Court.
a partition suit, a right enures to the plaintiff to apply for a final decree for
limitation of three years; that as such right to apply accrues on the date of
the preliminary decree, any application filed beyond three years from the
years from the date when the High Court dismissed the defendant's appeal
the petitioner on the decision of this Court in Sital Parshad v. Kishori Lal
[AIR 1967 SC 1236], the decision of the Privy Council in Saiyid Jowad
Hussain v. Gendan Singh [AIR 1926 PC 93] and a decision of the Patna
High Court in Thakur Pandey v. Bundi Ojha [AIR 1981 Patna 27] in
The issue:
properties jointly held by them, into different lots or portions and delivery
thereof to the respective allottees. The effect of such division is that the
share or interest in it. A person who does not have a share in such
without division by metes and bounds. For example, where four brothers
a partition. But if only one brother wants to get his share separated and
the prayer is not only for declaration of plaintiff’s share in the suit
properties, but also division of his share by metes and bounds. This
involves three issues: (i) whether the person seeking division has a share
relief of division and separate possession; and (iii) how and in what
stage decides whether the plaintiff has a share in the suit property and
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stage decision termed as ‘decree’ under Order 20 Rule 18(1) and termed
Rule 18(1) and is the subject matter of the final decree under Rule 18(2).
The terms 'preliminary decree' and 'final decree' used in the said rule are
reads thus :
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“Where a preliminary decree for partition has been passed, the Court
may, in any case not provided for by section 54, issue a commission
to such person as it thinks fit to make the partition or separation
according to the rights as declared in such decree.”
Section 3 of the Act provides that subject to sections 4 to 24, every suit
Schedule to the Act (vide clause (j) of section 2 of the Act). The term
accordance with the provisions of the said Act. The Third Division of the
Applications. The Schedule does not contain any Article prescribing the
137 provides that for any other application for which no period of
is three years which would begin to run from the time when the right to
jurisdiction of the court to grant any fresh relief based on a new cause of
which contains no fresh or new prayer for relief is not one to which
Limitation Act, 1963 would apply. These principles are evident from the
provisions of the Code and the Limitation Act and also settled by a series
of judgments of different High Court over the decades (See : for example,
Lalta Prasad vs. Brahma Din [AIR 1929 Oudh 456], Ramabai Govind v.
Anant Daji [AIR 1945 Bom. 338], Abdul Kareem Sab vs. Gowlivada S.
[AIR 1965 Kar. 73], Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors.
[AIR 1983 Orissa 121], Laxmi v. A.Sankappa Alwa [AIR 1989 Ker. 289].
Phoolchand vs. Gopal Lal [AIR 1967 SC 1470], Hasham Abbas Sayyad
v. Usman Abbas Sayyad & Ors. [2007 (2) SCC 355] and Bikoba Deora
division. This duty in the normal course has to be performed by the court
Rule 18(2) and the matter goes into storage to be revived only when an
pending issue and the need for referring the matter either to the Collector
decree declaring the rights of several parties interested in the suit property
court in regard to the shares of various parties and deliver the respective
entrustment to the Collector under law was for two reasons. First is that
regard to revenue. (The second reason, which was very important in the
19th century and early 20th century when the Code was made, has now
negligible). Where the Collector acts in terms of the decree, the matter
does not come back to the court at all. The court will not interfere with
proposals contained in the report are considered by the court; and after
hearing objections to the report, if any, the court passes a final decree
whereby the relief sought in the suit is granted by separating the property
of proper division, the court may direct sale thereof and distribution of
9.3) As the declaration of rights or shares is only the first stage in a suit
for partition, a preliminary decree does not have the effect of disposing of
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the suit. The suit continues to be pending until partition, that is division
Act) nor an application seeking a fresh relief (falling under Article 137 of
a Commissioner, get a report, and draw a final decree in the pending suit
above) are not relevant for deciding the issue arising in this case. They all
or a decree for sale under Rule 4 of Order 34 of the Code), the amount
due is determined and declared and the time within which the amount has
to be paid is also fixed and the consequence of non payment within the
decides all the issues and what is left out is only the action to be taken in
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the event of non payment of the amount. When the amount is not paid
the plaintiff gets a right to seek a final decree for foreclosure or for sale.
On the other hand, in a partition suit the preliminary decrees only decide
a part of the suit and therefore an application for passing a final decree is
decree and final decree or there can be merely a single decree with certain
further steps to be taken by the court. In fact several applications for final
That part of the prayer relating to actual division by metes and bounds
and allotment is left for being completed under the final decree
proceedings. Thus the application for final decree as and when made is
provide for a ‘pause’ between a decree and execution. A 'pause' has also
preliminary decree. In very few cases, defendants in money suits, pay the
the second stage that is levy of execution, or applications for final decree
suit for property, he wants the property. He naturally wonders why when
he files a suit for recovery of money, he should first engage a lawyer and
obtain a decree and then again engage a lawyer and execute the decree.
final decree and then file an execution to get the actual relief. The
perplexed as to why when a money decree is passed, the court does not
fix the date for payment and if it is not paid, proceed with the execution;
when a preliminary decree is passed in a partition suit, why the court does
and make a final decree and deliver actual possession of his separated
share. Why is it necessary for him to remind the court and approach the
Trial judges tend to believe that adjudication of the right being the
The focus is on disposing of cases, rather than ensuring that the litigant
gets the relief. But the focus should not only be on early disposal of
cases, but also on early and easy securement of relief for which the party
only till preliminary decree is made, then hand it over to their juniors to
conduct the final decree proceedings and then give it to their clerks for
finances and energy by the time he secures the preliminary decree and has
neither the capacity nor the energy to pursue the matter to get the final
credibility of the civil justice system. Courts and Lawyers should give as
passed, there is no guarantee that the plaintiff will see the fruits of the
the Code should enable a party not only to get a decree quickly, but also
to get the relief quickly. This requires a conceptual change regarding civil
litigation, so that the emphasis is not only on disposal of suits, but also on
securing relief to the litigant. We hope that the Law Commission and
Parliament will bestow their attention on this issue and make appropriate
process from the stage of its initiation to the stage of securing actual
should also be avoided. The Code of Civil Procedure should provide for a
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continuous and seamless process from the stage of filing of suit to the
stage of getting relief. In money suits and other suits requiring a single
the first stage relating to determination of liability and then the second
stage of execution and recovery, without any pause or stop or need for the
Conclusion
application for final decree for initiation (unless the local amendments
require the same). As noticed above, the Code does not contemplate filing
dates for further proceedings till a final decree is passed. It is the duty and
16. In view of the foregoing, we are of the view that the application
filed by the plaintiff in this case for drawing up of a final decree, was
………………………..J.
(R. V. Raveendran)
……………………….J.
(B. Sudershan Reddy)
New Delhi;
August 21, 2009.
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