JUDGMENT
Hemant Gupta, J.
1. The defendants are in revision aggrieved against the order dated 16.9.2003 passed by the learned Trial Court allowing application for passing final decree of partition.
2. The plaintiff Maghar Singh filed a suit for partition of his 2/7th share of land in dispute. A preliminary decree for partition was passed by the learned Trial Court on 20.11.1978 but could not move for preparing final decree as he being rustic villager was not aware of such requirement. It is pleaded that after the death of Bachan Kaur her inheritance has devolved upon the plaintiff and his two brothers namely Baldev Singh and Hari Singh and thus the plaintiffs have now got 1/3rd share. Since the defendants threatened to raise construction, the plaintiff filed a suit for separate possession by way of partition on 16.12.2004 and in the said suit it transpired from the written statement filed that there was earlier litigation. The plaintiff found certified copy of the judgment and decree after search and therefore, the suit for partition was withdrawn on 15.6.1995 and the application for passing of final decree has been filed.
3. The only argument raised is in the present revision petition is that the application for preparation of the final decree is beyond the period of limitation which is 3 years.
4. The learned Trial Court found that the provisions enshrined in Articles 136 and 137 of the Limitation Act, 1963 (hereinafter referred to as the Act) read with provisions of Order 21 Rule 18 of the Code of Civil Procedure (hereinafter referred to as the Code) leaves no manner of doubt as per the statute there is no limitation prescribed for passing of the final decree but imposed costs of Rs. 1000/- on the plaintiff as he has not remained vigilant for a long period.
5. The learned counsel for the petitioner has vehemently argued that the preliminary decree was passed on 20.11.1978 whereas the application for preparation of the final decree has been filed on 17.7.1995 i.e. almost after 17 years and thus application for preparation of final decree is beyond the period of limitation. Reliance is placed upon Venkatrao Anantdeo Joshi and Ors. v. Sau Malatibai and Ors., A.I.R. 2003 S.C. 267.
6. On the other hand the learned counsel for the respondent has relied upon a judgment of Hon’ble Supreme Court reported as Shankar Balwant Lokhande (dead by L.Rs) v. Chandrakant Shankar Lokhande and Anr., A.I.R. 1995 S.C. 1211 to contend that the limitation does not begin to run from the date when direction is given to pass final decree. It is held that until the final decree determining the rights of the parties by metes and bounds is drawn up and engrossed on stamped paper, the decree does not becomes executable. Reliance is also placed upon a single Bench Judgment of this Court in Naresh Kumar and Anr. v. Smt. Kailash Devi and Ors., 1999 (Suppl.) Civil Court Cases 511 to argue that the plea of limitation for preparation of final decree is available in the mortgage suits as in terms of the Order 34 Rule 2 of the Code, the amount is required to be deposited within the time frame, whereas in a decree for partition the provisions of Order 20 Rule 18 of the Code are applicable and that there is no limitation for preparation of final decree.
7. The learned counsel for the respondent has also placed reliance upon Ct. A.Ct. Nachiappa Chettiar and Ors. v. Ct. A.Ct. Subramaniam Chettiar, A.I.R. 1960 S.C. 307 to contend that until and unless final decree is not prepared, the suit is deemed to be pending before the civil court as the suit is culminated only with the passing of the final decree and therefore the suit shall be deemed to be pending till such time final decree is prepared and thus, the question of application as barred by time does not arise.
8. The judgment referred to by the learned counsel for the petitioner is a judgment pertaining to passing of the final decree out of mortgage suit. A Single Judge of this Court in Naresh Kumar’s case (supra) has drawn distinction between a preliminary decree passed in a partition suit governed by the provisions of Order 20 Rule 18 of the Code and a preliminary decree in a mortgage suit governed by the provisions of Order 34 of the Code and it was held to the following effect:
“10. It is abundantly clear from the relevant provisions of the Code that have been reproduced above that in the cases concerning Order 34 of the Code, namely, preliminary decree passed in suit relating to mortgages of immovable property, after preliminary decree opportunity is to be given to the judgment debtor for making payment. Once a preliminary decree has been passed in a suit relating to mortgages of immovable property unless subsequent procedure is adopted and adhered to final decree cannot be passed. As already referred to above, under Order 34, Rule 4 of the Code the Court has to fix a period not exceeding six months within which the defendant is to pay the amount to the plaintiff as determined by the Court. The plaintiff can apply for drawing of the final decree if amount is not paid within time. The Court has the power to extend the time. Similarly, under Order 34 Rule 5 of the Code, deposit of the decretal amount by the judgment debtor in an execution for sale of the mortgaged property is permissible unless the sale is confirmed. The relevant provisions referred to above consequently show that in the case of suits concerning immovable property based on mortgaged of the property a preliminary decree necessarily has to be followed in further application or proceedings as the case may be before a final decree can be passed. However, under Order 20, Rule 18 of the Code when a preliminary decree is passed for partition, the Court can only declare the rights of the parties but is duty bound to after the further act is done, pass a final decree, if permissible. He is to give further direction as to if necessary. In the case of preliminary decree passed for partition, no further right necessarily, in this regard accrue. It would be a continuation of the same proceedings.”
17. Whenever a preliminary decree for partition is passed in a suit for partition, the court should appoint immediately a Local Commissioner, if necessary, or take other proceedings rather than to bound his hands. He is duty bound to continue the proceedings in this regard. This question has been considered in the case of Ramanathan Chetty v. Alagappa Chetty, A.I.R. 1930 Mad. 528. Madras High Court 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. It was held as under: –
“It is clear to me that the suit continues for some purposes at least until the final decree, it would indeed be an anomaly if any decree could be reached by proceedings other than a suit. That being so I have been shown no authority for the view that an application in a pending suit desiring the Court to proceed to judgment is governed by any rule of limitation.”
9. In Ct.A.Ct. Nachiappa Chettiar’s case (supra) the question arose as to when reference to an Arbitrator can be made in terms or provisions of Arbitration Act, 1940. It was held that till such time, all matters in controversy in the suit are finally decided it is open to the parties to apply for a reference at any time before the final judgment is pronounced. That was a case where after passing of preliminary decree but before passing final decree, a reference was sought to be made to the Arbitrator. It was held to the following effect:
“38. But this construction still leaves one question to be considered. Had a final judgment been pronounced by the trial Court in this case at the time when it passed the order of reference? It had delivered a judgment and a preliminary decree had been drawn up. A judgment delivered by a Court in a partition suit which is followed by a preliminary decree cannot be said to be a final judgment in the suit. Precedence which parties may taken pursuant to the preliminary decree are still a part of the suit, and it is only with the passing of the final decree that the suit comes to an end. As observed by the Privy Council in Jadu Nath Roy v. Parameshwar Mullick, 67 Ind App.II;A.I.R. 1940 P.C. II, a partition suit in which a preliminary decree has been passed is still a pending suit with the result that the rights of parties who are added after the preliminary decree have to be adjusted at the time of the final decree.”
10. Similarly, in Rungerford Investment Trust Ltd. v. Haridas Mundhra and Ors., A.I.R, 1972 S.C. 1826 the Court was dealing with a question the court has power to make an order rescinding the decree for specific performance on account of nonpayment of the consideration amount within the time fixed by the Court. It was held that the decree in a suit for specific performance is in the nature of preliminary decree and the court retains season of the case notwithstanding the fact that a decree for specific performance has been passed and that the decree is really in the nature of preliminary decree, therefore, with the passing of preliminary decree, the court has not ceased to be in control over this lis which remained pending with the civil Court. Such control will come to an end only with the passing of the final decree.
11. Still further in Shankar Balwant Lokhande’s case (supra) the Hon’ble Supreme Court has held that until 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. The Court held to the following effect:
“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 in only partial to the extent of his 1/6th right without any demarcation or division of the properties. Until 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.”
12. In view of the principles of law laid down in the aforesaid judgments it is apparent that the Court continues to be seized of the matter till such time final decree is passed and therefore, the application though filed after 17 years cannot be said to be barred by limitation.
13. The issue can be examined from another angle as well. If the preliminary decree is found to be beyond the period of limitation then what are the consequences? The only one consequences which follows is that the parties will retain their character as co-sharers. As a co-sharer each of the parties has a right to seek partition of the property to enjoy separate possession of his share of the property. Can unwilling co-sharer be compelled to enjoy the property alongwith other co-sharers. Obviously, No. Thus, the decree for partition of the property by metes and bounds stands on a different footing and thus the application for preparation of final decree cannot be said to, be barred by limitation.
14. In view of above, I do not find any patent illegality or material irregularity in the order taking steps for the preparation of the final decree warranting interference by this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India.
