Case Note & Summary
The dispute arose from a partition suit where a preliminary decree was passed on August 2, 1955 declaring that respondent Chandrakant was entitled to 1/6th share and appellants were entitled to 5/6th share in suit properties. The trial court directed preparation of final decree on April 19, 1958. The respondent supplied non-judicial stamps for his 1/6th share and a final decree was engrossed and signed on January 11, 1961. The appellants did not supply stamps, so no final decree was passed for their share. Their earlier execution attempts were dismissed, including Darkhast No.70 dismissed on March 13, 1968 as barred by limitation. The High Court in First Appeal No.605/68 held that no decree existed for execution. On August 14, 1975, appellants filed Misc. Application No.538/75 to accept stamps and pass final decree, which the trial court allowed on February 3, 1976 holding not barred by limitation. However, the High Court in First Appeal No.229/76 held on March 7, 1977 that limitation began from the date direction was given to pass final decree and thus barred; the Division Bench dismissed LPA 15/77 in limine on April 7, 1977. The Supreme Court examined when limitation begins to run for filing an application to pass final decree on stamped papers. The Court analyzed provisions of CPC and Limitation Act, 1908, and held that a preliminary decree only declares shares and is not executable; a final decree must divide property by metes and bounds and be engrossed on stamp paper. Since no final decree was drawn working out the rights of all parties, limitation had not begun to run against the appellants. The Court allowed the appeals and set aside the High Court's order, restoring the trial court's order accepting stamps and directing final decree.
Headnote
A) Civil Procedure - Decree - Preliminary and Final Decree - Code of Civil Procedure, 1908, Section 2(2), Order 20 Rules 7 and 18 - A preliminary decree in a partition suit declares the rights and shares of parties and leaves actual division to be worked out in further proceedings; a final decree must specify division by metes and bounds and be engrossed on stamped paper. The Supreme Court held that more than one final decree can be passed and that the final decree becomes executable only when it conclusively determines the rights of all parties. (Paras 3-5, 7-8) B) Limitation - Execution of Decree - Commencement of Limitation - Limitation Act, 1908, Article 182 - Limitation for execution of a final decree in a partition suit starts from the date the final decree is drawn up on non-judicial stamp paper and signed by the court, not from the date when direction to prepare final decree is given. The Supreme Court rejected the High Court's view that limitation ran from the direction date and held that no executable decree existed until a final decree working out all shares was passed. (Paras 6-10) C) Partition - Partial Final Decree - Effect on Other Co-sharers - Code of Civil Procedure, 1908, Order 20 Rule 18(2) - A final decree passed only for one co-sharer's share without division by metes and bounds does not trigger limitation against other co-sharers; no Commissioner was appointed and no final decree was passed relating to all, so the application for final decree was not barred by limitation. The Supreme Court held that the preliminary decree only declared shares and the partial final decree was not an executable decree qua the appellants. (Paras 5, 7-10)
Issue of Consideration
When does limitation begin to run for filing an application to pass final decree on stamped papers after preliminary decree for partition, especially where a partial final decree was passed for one party's share?
Final Decision
Supreme Court allowed the appeals, set aside the High Court's judgment, and held that limitation for execution of a final decree in a partition suit begins only from the date a final decree is drawn up on stamped paper and signed by the court, working out rights of all parties; since no such final decree had been passed regarding appellants' share, their application was not barred by limitation and the trial court's order accepting stamps and directing final decree was restored.
Law Points
- A preliminary decree in partition suit only declares rights and shares
- final decree must divide by metes and bounds and be engrossed on stamp paper
- limitation for execution of final decree runs from date final decree is drawn up on stamp paper and signed
- not from direction
- more than one final decree can be passed
- partial final decree for one sharer does not start limitation for others
- no executable decree exists until final decree working out all shares is passed.
