Shankar
Balwant Lokhande Vs. Chandrakant Shankar Lokhande & Anr [1995] INSC 183 (20 March 1995)
Ramaswamy,
K. Ramaswamy, K. Hansaria B.L. (J) K. Ramaswamy, J.:
CITATION:
1995 AIR 1211 1995 SCC (3) 413 JT 1995 (3) 186 1995 SCALE (2)318
ACT:
HEAD NOTE:
1.
These appeals by special leave arise from the judgment of the High Court of
Bombay dated April 7,
1977 by which LPA
15/77 was dismissed in limine. The facts lie in a short compass for deciding
the question of law arising in these appeals. On August 2, 1955, a preliminary
decree in Spl.Civil Suit No.296/49 was passed declaring that Chandrakant-first
respondent was entitled to 1/6th share and the appellants were entitled to
5/6th share in the suit properties. An order was made on April 19, 1958 directing preparation of a final
decree. On December 19,
1960, first respondent
supplied non-judicial stamps to engross and sign the final decree to the extent
of his 1/6th share. On January
11, 1961, a final
decree, in that behalf, was engrossed on the stamped paper and signed by the
trial court. Since the appellants had not supplied the non- judicial stamps, no
final decree was made qua them. On the other hand, Darkhast No.41/63 was filed
by them for execution of the preliminary decree which was subsequently dismissed
as withdrawn. Darkhast No. 70 was filed in 1965 which was dismissed on March 13, 1968 as the application was barred by
limitation. In First Appeal No.605/68, the High Court held that "in view
of the fact that no final decree was passed on non-judicial stamps, there was
no decree in existence for its execution". Therefore, on August 12, 1975, the appeal was dismissed. On August 14, 1975, the appellants filed Misc.Application
No.538/ 75 before the trial court to accept the nonjudicial stamps and to pass
a final decree. The said application was contested by the respondent pleading
bar of limitation. The trial court overruled the objection and allowed the
application on 3.2.76 holding that the application was not barred by
limitation. In First Appeal No.229/76, Learned Single Judge of the High Court
held that the limitation began to run from the date when the direction was
given to pass final decree.
Since
the application was filed after the expiry of period of limitation counted from
that date, the Court held on March 7, 1977
that it was barred by limitation. As stated earlier, on further appeal, the
division bench dismissed the appeal in limine.
2. The
crucial question for consideration is as to when the limitation begins to run
for filing an application to pass final decree on stamped papers. There is no
direct decision of this court on this point. Therefore, after hearing counsel
at length, we reserved the judgment in the appeal and independently made
detailed examination. There is divergence of opinion in the High Courts on this
question.
3.
Order 20 Rule 7 of CPC envisages that the decree "shall bear the day on
which the judgment was pronounced, and, when the judge has satisfied himself
that the decree has been drawn up in accordance with the judgment, he shall
sign the decree". Section 2(2) of CPC defines "decree" to mean
"the formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit and may be
either preliminary or final". A preliminary decree is one which declares
the rights and liabilities of the parties leaving the actual result to be
worked out in further proceedings.
Then,
as a result of the further inquiries conducted pur- suant to the preliminary
decree, the rights of the parties are fully determined and a 189 decree is
passed in accordance with such determination which is final. Both the decrees
are in the same suit. Final decree may be said to become final in two ways: (i)
when the time for appeal has expired without any appeal being filed against the
preliminary decree or the matter has been decided by the highest court; (ii)
when, as regards the court passing the decree, the same stands completely disposed
of It is in the latter sense the word "decree" is used in, s.2(2) of
CPC. The appealability of the decree will, therefore, not affect its character
as a final decree.
The
final decree merely carries into fulfillment the pre- liminary decree.
4. Order
20 Rule 18 envisages passing of a decree for partition of property or for
separate possession of a share therein. Sub-r. (2) is material which provides
that "if and in so far as such decree relates to any other immovable
property or to movable property, the Court may, if the partition or separation
cannot be conveniently made without further inquiry, pass a preliminary decree
declaring the rights of the several parties interested in the property and
giving such further directions as may be required".
(Emphasis
ours) Thus, it could be seen that where the decree relates to any immovable
property and the partition or separation cannot be conveniently made without
further inquiry, then the court is required to pass a preliminary decree
declaring the rights of several parties interested in the property. The court
is also empowered to give such further directions as may be required in this
behalf A preliminary decree in a partition action, is a step in the suit which
continues until the" final decree is passed. In a suit for partition by a coparcenar
or cosharer, the court should not give a decree only for the plaintiffs share,
it should consider shares of all the heirs after making them parties and then
to pass a preliminary decree. The words "declaring the rights of the
several parties interested in the property" in sub-rule(2) would indicate
that shares of the parties, other than the plaintiff(s), have to be taken into
account while passing preliminary decree. Therefore, preliminary decree for
partition is only a declaration of the rights of the parties and the shares
they have in the joint family or coparcenary property, which is the subject-
matter of the suit. The final decree should specify the division by metes and
bounds and it needs to be engrossed on stamped paper.
5. The
preliminary decree, in these appeals declared that the properties belong to the
joint family of the plaintiffs and defendant No. 1 set out in Schedules 'A' and
'B'. The details of the properties have been enumerated and they are liable to
partition as per the right of the parties mentioned in the preliminary decree.
In other words, Chandrakant has 1/6th share and the appellants have 5/6th
share. The former is directed to pay certain sum towards marriage expenses of
his sisters with a charge on the property allotted to his share. He is also
entitled to mesne profits from the date of the institution of the suit in
respect of certain properties specified in para 7 of the preliminary decree. A
Commissioner was directed to be appointed to partition the properties mentioned
in paragraph 8 of the decree. Para 9 declares
certain charges in respect of specified properties. It would, thus, he seen
that except declaration of the rights of the parties and the charge on the
shares, there is no final decree. The partition is to be effected by the
Commissioner to be appointed and as per 190 directions from the court in that
behalf A preliminary decree in respect of 1/6th share of the first respondent
was engrossed on the stamped papers submitted by him. The question is whether
the decree then became final and the rights of the parties stood crystallised,
as envisaged under s.2(2) of CPC and, if so, when the limitation would begin to
run for execution thereof? 6.It is seen that the single Judge of the High Court
held that the limitation began to run from the date when the direction was
given by the civil court to pass the final decree and since the application was
not made by the appellants within three years from that date, the application
for execution stood barred. The single Judge concluded thus "I, therefore,
hold that limitation for ex- ecuting a final decree in a suit for partition
starts on the date on which the final decree is passed, that is, on the date on
which the judgment directing the final decree to be drawn is given and not from
any subsequent date on which the party supplies the non- judicial stamp for
engrossing the final decree and when the Court engrosses the final decree on
the stamp and signs it. "
7.
Question is whether the aforesaid view is correct? Since the decree is one
which is prior to the Limitation Act, 1963, we are to look to the provisions
contained in the Limitation Act, 1908, (for short, 'the old Act'), for deciding
the controversy. Article 182 of the First Schedule to the old Act envisages
that "for the execution of a decree or order of any civil court not
provided for by Article 183 or by Section 48 of CPC, the period of limitation
of three years begins to run from the date the final order was passed on an
application made in accordance with law to the proper court for execution, or
to take some step in aid of execution of the decree or order. Explanation 1
provides that "where the decree or order has been passed severally in favour
of more persons than one, distinguishing portions of the subject-matter as
payable or deliverable to each, the application mentioned in note 5 of the
article shall take effect in favour only of such of the said persons or their
representatives as it may be made by. But where the decree or order has been
passed jointly in favour of more persons than one, such application, if made by
any one or more of them, or by his or their representatives, shall take effect
in favour of them all." Therefore, it would be clear that where decree or
order has been passed jointly against more persons than one, the application
shall take effect against them all, even if it is made by one or more. It is
seen that the preliminary decree is a declaration of the rights of the parties
with a charge on the properties to be allotted and a Commissioner is required
to be appointed for partition of certain specified properties. Therefore, as
envisaged in sub-r. (2) of Rule 18 of Order 20, it was only a preliminary
decree declaring the rights of the parties with power to the court to give
further directions in that behalf It is settled law that more than one final
decree can be passed. With the passing of the final decree in respect of the
share of the first respondent, the rights of the parties in respect of other
properties have not been crystallised and no final decree dividing the
properties by metes and bounds was passed nor any application was made to
divide the properties in term's of the shares of the parties declared in the
preliminary decree. 191
8. It
has been seen that after passing of preliminary decree for partition, the
decree cannot be made effective without a final decree. The final decree made
in favour of the first respondent is only partial to the extent of his 1/6th
right without any demarcation or division of the properties. Until the rights
in the final decree proceedings are worked out qua all and till a final decree
in that behalf is made, there is no formal expression of the adjudication
conclusively determining the rights of the parties with regard to the
properties for partition in terms of the declaration of 1/6th and 5/6th shares
of the first respondent and the appellants so as to entitle the party to make
an application for execution of the final decree.
9. In Rameshwar
Singh-Decree holder v. Homeswar Singh- Judgment-debtor, AIR 1921 Privy Council
3 1, the facts, in nutshell, were: There was a joint liability for the payment
of some amount under a grant. A decree in that behalf was passed and the
property was sought to be proceeded against the, estate for execution. The
contention was that since a decree was made earlier which was executable but no
appli- cation was made within limitation, the decree became unexecutable, being
barred by limitation. That was accepted by the High Court. On appeal, the Judicial
Committee held that "in order to make the provisions of the Limitation Act
apply, the decree sought to be enforced must have been in such a form as to
render it capable in the circumstances of being enforced". The decree
being limited in its scope, it was held that limitation did not begin to run
from the date of decree as drawn. The contention of Smt.Jaishree Wad, learned
council for the respondent, is that the Privy Council upheld the principle of
making an application within three years from the date when the right to apply
accrues, as provided in Article 181 of the old Limitation Act, the ratio of the
aforesaid case applies to the facts in this case since the application had not
been made within three years or within 12 years and so, it was hopelessly
barred by limitation. She placed reliance on the judgment of this Court in Yeshwant
v. Walchand, AIR 1951 SC 17 also, and on judgments in Maksudan Prasad v. Smt. Lakshmi
Devi, AIR 1983 Patna 105, Pandivi Satyanandam v P. Nammayya AIR 1938 Madras
307, and Basamma v. Shivamma, AIR 1963 Mysore 323.
10. As
found earlier, no executable final decree has been drawn working out the rights
of the parties dividing the properties in terms of the shares declared in the
pre- liminary decree. The preliminary decree had only declared the shares of
the parties and properties were liable to be partitioned in accordance with
those shares by a Com- missioner to be appointed in this behalf Admittedly, no
Commissioner was appointed and no final decree had been passed relating to all.
11. In
Yashwant's case (supra), the facts were that preliminary decree for accounting
was passed in a suit for rendition of account of partnership. There was deficit
court fee payable. It was contended that until the payment of deficit court fee
was made, right had not been accrued to draw the final decree and that
therefore, limitation begins to run only from the date of paying the deficit
court fee.
This
court negatived the contention and held that the preliminary decree was not a
conditional decree and its enforceability was not dependent upon the future act
namely pay- 192 ment of the deficit court fee; and payment thereof at a later
date would not provide fresh limitation to run from that date.
12. As
to Maksudan's case (supra), we state that it had not been correctly decided.
Limitation does not begin to run from the date when direction is given to pass
final decree.
Mere
giving of direction to supply stamped paper for passing final decree does not
amount to passing a final decree.
Until
the final decree determining the rights of the parties by metes and bound is
drawn up and engrossed on stamped paper(s) supplied by the parties, there is no
executable decree. In this behalf, it is necessary to note that s.2(a) of the
Bombay Stamp Act, 1958, as amended by the local Act, provides that a decree of
civil. court is required to be stamped as per Article 46 in Schedule-1. Section
34 thereof lays down that "no instrument chargeable with duty shall be
admitted in evidence for any purpose by any person having by law or consent of
parties authority to receive evidence, or shall be acted upon, registered or
authenticated by any such person or by any public officer unless such
instrument is duly stamped". Therefore, executing court cannot receive the
preliminary decree unless final decree is passed as envisaged under Order 20
Rule 18(2). After final decree is passed and a direction is issued to pay
stamped papers for engrossing final decree thereon and the same is duly
engrossed on stamped paper(s), it becomes executable or becomes an instrument
duly stamped. Thus, condition precedent is to draw up a final decree and then
to engross it on stamped paper(s) of required value. These two acts together
constitute final decree, crystallizing the rights of the parties in terms of
the preliminary decree. Till then, there is no executable decree as envisaged
in Order 20 Rule 18(2), attracting residuary Article 182 of the old Limitation
Act. Contrary views of the High Courts, are not good law. A Division Bench of the
Andhra Pradesh High Court in Smt. Kotipalli Mahalakshmamma v. K. Ganeswara Rao,
AIR 1960 AP 54, correctly decided the question of law which held that the
limitation begins to run only after a final decree is engrossed on stamped
papers.
13.
Accordingly, the appeals arc allowed. The judgments and orders of the High
Court arc set aside and that of the trial court stands confirmed. The trial
court is directed first to pass the final decree and then to engross the same
on the stamped papers already supplied by the appellants; if further stamped
papers be needed, reasonable time would be given to supply the same. The final
decree would then be drawn thereon. The court would, thereafter, proceed with
the execution of the final decree in accordance with law.
14. In
the circumstances, the parties am directed to bear their own costs throughout.
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