Case Note & Summary
The petitioner, Sugandhabai alias Sundarabai J. Sakharam Meher, was the decree holder in a partition suit. A preliminary decree was passed on 16/03/1993, declaring her 3/7th share in the suit property, which included agricultural land, house property, open land, and movable property. Subsequently, the decree holder filed an application (Exh. 20) in M.J.C. No. 06/2008 praying for appointment of a Court Commissioner to effect partition of her share in the house property, open land, and movable property. The executing Court dismissed the application on two grounds: first, that a similar application had been filed earlier but was not pressed when a precept was sent under Section 54 of the Code of Civil Procedure, 1908 for partition of agricultural land; and second, that the application was barred by limitation under Article 136 of the Limitation Act, 1963, as it was filed almost 15 years after the preliminary decree. The decree holder challenged this order by way of a writ petition before the Bombay High Court, Nagpur Bench. The respondents supported the impugned order, relying on judgments such as Ratansingh vs. Vijaysingh, Dr. Chiranji Lal vs. Hari Das, and Ram Bachan Rai vs. Ram Udar Rai, which held that a decree becomes inexecutable after the period prescribed under Article 136 expires. The petitioner's counsel argued that final decree proceedings are not governed by Article 136, as they are a continuation of the suit. The High Court, after hearing both sides, held that the executing Court's view was erroneous. The Court noted that the application for final decree is not an execution application but a step in the suit itself, and therefore Article 136 of the Limitation Act does not apply. The Court set aside the impugned order and directed the executing Court to proceed with the application for appointment of a Commissioner in accordance with law. The writ petition was allowed, and rule was made absolute.
Headnote
A) Civil Procedure - Final Decree Proceedings - Limitation - Article 136 of Limitation Act, 1963 - Final decree proceedings are not governed by Article 136 of the Limitation Act, 1963, as they are a continuation of the suit and not execution proceedings - The executing Court erred in dismissing the application for appointment of a Commissioner on the ground of limitation - Held that the application for final decree is not barred by limitation (Paras 3-6).
Issue of Consideration
Whether the application for appointment of a Court Commissioner for partition in final decree proceedings is barred by limitation under Article 136 of the Limitation Act, 1963.
Final Decision
The impugned order is set aside. The executing Court is directed to proceed with the application (Exh. 20) for appointment of a Court Commissioner in accordance with law. The writ petition is allowed. Rule is made absolute accordingly.
Law Points
- Final decree proceedings are not governed by Article 136 of the Limitation Act
- 1963
- Execution of preliminary decree for partition
- Appointment of Court Commissioner for partition
Case Details
2019 LawText (BOM) (06) 149
Writ Petition No. 2428/2017
Mrs. (Dr.) R.S. Sirpurkar for petitioner, Shri N.N. Thengre for respondent nos. 1 to 3
Sugandhabai alias Sundarabai J. Sakharam Meher
Shrawan Alias Vistari V. Narayan Karanba, Om Ganesh Sitaram Kamdi, Kaushalyabai J. Vishwanath Palmoda, Deorao Ramchandra Marghare
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Nature of Litigation
Writ petition challenging the order of the executing Court dismissing the application for appointment of a Court Commissioner for partition in final decree proceedings.
Remedy Sought
The petitioner sought setting aside of the impugned order and direction to the executing Court to appoint a Commissioner for partition of her 3/7th share in the house property, open land, and movable property.
Filing Reason
The executing Court dismissed the application on the ground of limitation under Article 136 of the Limitation Act, 1963, and on the ground that a similar application was earlier not pressed.
Previous Decisions
A preliminary decree was passed on 16/03/1993. The decree holder filed an application (Exh. 20) in M.J.C. No. 06/2008 for appointment of a Commissioner. The executing Court dismissed that application.
Issues
Whether the application for appointment of a Court Commissioner for partition in final decree proceedings is barred by limitation under Article 136 of the Limitation Act, 1963.
Whether the executing Court was correct in dismissing the application on the ground that a similar application was earlier not pressed.
Submissions/Arguments
The petitioner argued that final decree proceedings are not governed by Article 136 of the Limitation Act, 1963, as they are a continuation of the suit and not execution proceedings.
The respondents argued that the decree becomes inexecutable after the period prescribed under Article 136 expires, relying on Ratansingh vs. Vijaysingh, Dr. Chiranji Lal vs. Hari Das, and Ram Bachan Rai vs. Ram Udar Rai.
Ratio Decidendi
Final decree proceedings are not execution proceedings but a continuation of the suit. Therefore, Article 136 of the Limitation Act, 1963, which applies to execution applications, does not apply to applications for final decree. The executing Court erred in dismissing the application on the ground of limitation.
Judgment Excerpts
By the impugned order, the executing Court has dismissed the application (Exh. 20) filed by the decree holder praying that a Court Commissioner be appointed to effect partition of her 3/7th share in the suit / house property, open land and movable property.
The learned advocate for the petitioner – Decree holder submitted that the impugned order is illegal and unsustainable and is passed under the misconception that the final decree proceedings are also governed by Article 136 of the Act of 1963.
Procedural History
A preliminary decree was passed on 16/03/1993. The decree holder filed an application (Exh. 20) in M.J.C. No. 06/2008 for appointment of a Commissioner. The executing Court dismissed that application on 24/06/2019. The decree holder filed Writ Petition No. 2428/2017 before the Bombay High Court, Nagpur Bench, challenging the dismissal.
Acts & Sections
- Code of Civil Procedure, 1908: Section 54
- Limitation Act, 1963: Article 136
