Holding

The decree is a preliminary decree, the application to send it to the Collector is not an execution application, and thus Articles 136 and 137 of the Limitation Act do not apply.

Summary

The parties were involved in a partition suit filed in 1969, which resulted in a decree on 27 June 1975 declaring each party's one‑third share and directing that the partition be effected by the Collector under Section 54 of the Code of Civil Procedure. The trial court failed to send the decree to the Collector, and after more than 17 years the respondents filed applications seeking to have the decree transmitted for partition. The appellants objected, contending that the applications were barred by the limitation period under Articles 136 and 137 of the Limitation Act, 1963, arguing that the decree was a final decree and the applications were execution petitions. The Supreme Court examined the nature of the decree, held that it was a preliminary decree and that the applications were not execution proceedings, and therefore the limitation provisions did not apply. Consequently, the Court dismissed the appeal, affirming the lower courts' orders.

Issues considered

The nature of the decree dated 27 June 1975: whether it is a preliminary decree or a final decree.
Whether an application to send the decree to the Collector for partition under Section 54 CPC constitutes an application in execution.
Whether Articles 136 and 137 of the Limitation Act, 1963 are applicable to the said application and if the limitation period bars it.

Legislation cited

Code of Civil Procedure, 1908s. 2(2), s. 54, s. Order XXI Rule 11, s. Order XX Rule 18, s. Order XXVI Rule 13
Limitation Act, 1963s. Article 136, s. Article 137

Subjects

partition suitpreliminary decreefinal decreeSection 54 CPCexecution proceedingsLimitation ActArticles 136 and 137Civil Procedure

Judgment

[2008) 9 S.C.R. 1038

'I

A BIKOBA DEORA GAIKWAD & ORS. ..
v.
HIRABAI MARUTIRAO GHORGARE
(Civil Appeal No.4174 of 2008)

MAY 27, 2008
B
[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.] t .

Code of Civil Procedure, 1908:
s.54, Or.21 r 11, Or.20 r.18 - Partition suit - Decree
c passed stating that partition of land would be effected by Col-
lector in execution proceedings under s. 54 - Decree not sent
to Collector for partition in terms of s.54 by the trial Court -
After 18 years, respondent filed application for sending said
decree to Collector - Maintainability of the application chat-
D lenged on the ground that same was barred by limitation - ~

Held: Use of term 'execution proceedings' in the decree is .,
inadvertent and must be ignored - s. 54 confers duty upon a
Court and cannot be te·rmed to be execution proceeding -
Application filed before the Court to send decree and papers
E to Collector to carry out partition would not be an application
in execution and question of application of provisions of Limi-
talion Act would not arise - Accordingly Articles 136 and 137
of Limitation Act not applicable.
s. 2(2) - Decree - For construing nature of decree, one
...
F has to look to the terms thereof rather than speculate upon
the Court's intention - A decree whether preliminary or final is
binding on the parties but same does not mean that all de-
crees would be final decrees - Final decree come into being
only when suit is finally disposed of.
G
In a suit for partition, a decree dated 27.6.1975 was
passed declaring share of the parties. The decree stated
r
.
that partition of land woula be effected by the Collector in
execution proceedings under s.54 CPC. The partition of

H 1038
BIKOBA DEORA GAIKWAD & ORS. v. HIRABAI 1039
MARUTIRAO GHORGARE
~
~ house property would be effected by Commissioner ap- A
pointed in execution proceedings.
The trial court did not send the decree to the District
Collector for partition in terms of s.54, CPC.
On 19.12.2002, respondents filed an application for s
sending the said decree to the Collector. Appellant Nos.
2 and 3 filed objections on the premise that same was
barred by limitation, which were rejected. A writ petition
was also rejected by the High Court.
Another application was filed in March 2005 by the C
· appellants in terms of s.54, CPC whereto also an objec-
tion was filed. The objection was also dismissed. A writ
petition filed thereagainst been dismissed by the High
Court.
D
~ In appeal to this Court, appellants contended that the
,. decree dated 27.6.1975 is not a preliminary decree but in
effect and substance is really a final decree and/or both
and in that view of the matter the application for partition
.must be held to be in the nature of an execution petition
and that in any event, the said petition having been filed E
after a period of 17 years was barred under Articles 136
and 137 of the Limitation Act, 1963. .
Dismissing the appeal, the court
HELD: 1. By the judgment and order dated 27.6.1975 F
passed by the Civil Judge, on the basis whereof the de-
cree was prepared, 1/3rd share of the plaintiff as well as
· Defendant Nos.1 and 2 were declared. In terms of the said
decree, the plaintiff was granted liberty to recover sepa- ·.
rate possession of the land. It was directed that the parti- G
tion of the land shall be effected by the Collector in the
execution proceedings in terms of s.54 CPC. However,
as regards partition of the house property, the same was
to be effected by a Commissioner to be appointed in the
execution proceedings. A bare perusal of the said judg- H
1040 SUPREME COURT REPORTS [2008) 9 S.C.R.
-;--

A ment clearly shows that the decree passed therein was a •
preliminary decree and not a final decree. In terms of the
said decree, thus, in respect of agricultural land and as also
the house property, the plaintiff respondent was entitled
to file applications in terms of s.54 CPC as also Order XXI
B thereof, respectively. The terms 'execution proceedings'
appear to have been inadvertently used in the operative .,.- .
portion of the judgment. The same must be ignored. The
decree dated 27.6.1975 does not show that a final decree
has been passed. [Paras 7, 8) [1043-G,H, 1044-A,B,C]
c 1.2. A decree may denote final adjudication between
the parties and against which an appeal lies, but only when
a suit is completely disposed of, thereby a final decree would
come into being. There cannot be any. doubt whatsoever
that a decree may be partly preliminary and partly final. It
D has not been contended that the parties have partitioned ~

the joint properties by metes and ~ounds and they are in .
separate possession of the lands allotted to them. S.54 CPC
in effect and substance confers a duty upon the Court. The
said provision must be read in the context of the Order XXVI
E Rule 13 CPC and/or s.51, Order XXI Rule 11 thereof. It is not
in dispute that in the State of Maharashtra the practice to
get the properties partitioned by a District Collector still con-
tinues. S.54 only provides for a ministerial functions of a
court. It cannot be termed to be an execution proceeding. It ...,.
F is now well settled that for the purposes of construing the
nature of the decree one has to look to the terms thereof
rather than speculate upon the Court's intentions. [Paras 9,
10 and 11) [1044-H, 1045-A,B,C,D]
Ramanathan Chetty v. Alagappa Chetty & Ors. l.L.R 53
G Madras 378 - affirmed.
;.
1.3. A decree whether preliminary or final is binding '1'
on the parties but the same does not mean that all de-
crees would be final decrees. S.2(2) of the CPC clearly
shows as to the nature of the decrees that the court may
H
BIKOBA DEORA GAIKWAD & ORS. v. HIRABAI 1041
MARUTIRAO GHORGARE
...,.
~ pass. [Para 13] [1047 -C] A
2. A bare perusal of s.54 read with Order XX Rule 18
CPC leaves no manner of doubt that the application filed
before the Court to send decree and papers to Collector
to carry out partition was not and could not have been an
application in execution. If it was not an application for B
·--. execution, the question of the application of the provi-
sions of the Limitation Act would not apply. [Para 12]
Venkata Reddy & Ors. v. Pethi Reddy AIR (1963) SC
992 - relied on c
3.1 Article 136 would apply when an application for
execution of any decree (other than a decree granting a
mandatory injunction) or order of any civil court is to be
filed. An application for taking steps towards passing a
} final decree is not an execution application. The said pro- D
... vision, therefore, cannot have any application in respect
thereof. [Para 14] [1048-C,D]
3.2 Article 137 is a residuary provision which applies
when no period of limitation is provided elsewhere in the
Division. An application asking the court to perform its duty E
in terms of s.54 CPC can be filed at any point of time in a
case where a right to apply accrues in a decree holder.
Therefore, no period of limitation is to be prescribed as there
..r is none. Articles 136 and 137 of the Limitation Act, 1963 will
not have application. [Para 14] [1048-D,E,1049-E] F

Hasham Abbas Sayyad v. Usman Abbas Sayyad and
ors. (2007) 2 sec 355 - relied on.

Shankar Ba/want Lokhande (Dead) by LRs. v. Chandrakant
Shankar Lokhande & Anr. (1995) 3 SCC 413 - referred to. G
.4 CIVILAPPELLATE JURISDICTION: Civil Appeal No. 4174
"' of 2008
From the final Judyment and Order dated 12.2.2007 of
the High Court of Bombay in Writ Petition No. 7382 of 2005 H
1042 SUPREME COURT REPORTS [2008] 9 S.C.R.

y-

A R. Sundaravardan, Subhash Maruti Jadhav, Shivaji M.
Jadhav, Rahul Joshi and Brijkishor Sah for the Appellants.
•
Vinay Navare and Abha R. Sharma for the Respondents.
The Judgment of the Court was delivered by
8 5.8. SINHA, J. 1. Leave granted.
.,-·~

2. Wllether an application for initiating a final decree pro-
ceedings in terms of Section 54 of the Code of Civil Proce-
dure, 1908 (for short, "the Code") would be governed by any
c provision contained in the Schedule appended to the Lirnita-
tion Act, 1963 is the question involved in this appeal which
arises out of a judgment and order dated 12.2.2007 passed by
the High Court of Judicature at Bombay in Writ Petition No.
7382 of 2005.
D 3. A suit for partition was filed by the respondents herein ...
claiming 1/3'd share in the joint family property. The said suit .,
was registered as Regular Civil Suit No. 145 of 1969. A de-
cree was passed therein on or about 27.6.1975, the relevant
portion whereof reads as under:
E
"It is hereby declared that Plaintiff, Defendant No. 1 and 2
each have 1/3 share in the suit property described in the
schedule 7 to the plaint. Plaintiff do recover separate
possession of the land excluding the lands which are in
...
F
the possession of Defendant No. 7 and of the house ..
property. The partition of the land shall be effected by the
Collector in the execution proceedings, under Section 54
C.P.C. Partition of the house property shall effect by the
Commissioner to be appointed in the execution proceedings.
The suit against Defendant No. 7 is dismissed with costs.
G Other parties should bear their own costs."
Indisputably, the learned trial judge did not send the decree ..
to the District Collector for partition in terms of Section 54 of the "'
Code of Civil Procedure. An appeal preferred thereagainst by
the appellants was dismissed for default on or about 7.9.1978.
H
BIKOBA DEORA GAIKWAD & ORS. v. HIRABAI 1043
MARUTIRAO GHORGARE [S.B. SINHA, J.]

4. An application for sending the said decree to the Col- A
lector was filed before the Civil Judge Junior Division, lndapur
on or about 19.12.2002, which was marked as Regular Darkhast
No. 34 of 2002. Appellants 2 and 3 filed applications for dis-
missal thereof, inter alia, on the premise that the same was
barred by limitation. B
' --.., The said objections filed by the appellants were rejected.
A writ petition preferred thereagainst was also rejected by the
Bombay High Court. Another application was filed in March
2005 by the appellants herein in terms of Section 54 of the Code
whereto also an objection was filed. The said objection has also C
been dismissed. A writ petition filed thereagainst has been
dismissed by the High Court by reason of the impugned judg-
ment.
5. Mr. R. Sundaravardan, learned Senior Counsel appear- D
,. ing on behalf of the appellants submits:
(i) The decree dated 27 .6.1975 is not a preliminary
decree but in effect and substance is really a final
decree and/or both and in that view of the matter the
application for partition must be held to be in the E
nature of an execution petition.
(ii) In any event, the said petition having been filed after
a period of 17 years was barred under Articles 136
and 137 of the Limitation Act, 1963
F
6. Mr. Vinay Navare, learned counsel appearing on behalf
of the. respondents, on the other hand, would support the im-
pugned judgment.
7. By the judgment and order dated 27.6,1975 passed by
ttie Civil Judge, Junior Division, lndapur on the basis whereof G
the decree was prepared, 1/3rd share of the plaintiff as well as
Defendant Nos. 1 and 2 were declared. In terms of the said
decree, the plaintiff was grantefi liberty to recover separate
possession of the land excluding the lands which were in the
possession of Defendant No. 7 and of the suit property. It was H
1044 SUPREME COURT REPORTS [2008] 9 S.C.R.

A directed that the partition of the land shall be effected by the
Collector in the execution proceedings in terms of Section 54
of the Code. However, as regards partition of the house prop-
erty, the same was to be effected by a Commissioner to be
appointed in the execution proceedings. A bare perusal of the
s said judgment clearly shows that the decree passed therein was
a preliminary decree and not a final decree. "T

8. In terms of that said decree, thus, in respect of agricul-
tural land and as also the house property, the plaintiff respon-
dent was entitled to file applications in terms of under Section
C 54 of the Code as also Order XXI thereof, respectively.
The terms 'execution proceedings' appear to have been
inadvertently used in the operative portion of the judgment. The
same, in our opinion, must be ignored. The decree dated
27 .6.1975 does not show that a final decree has been passed.
0
9. 'Decree' as defined in Section 2(2) of the Code reads
as under:
"decree" means the formal expression of an adjudication
which, so far as regards the Court expressing it,
E 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. It shall be deemed to
include the rejection of a plaint and the determination of
any question within Section 144, but shall not include-
F
(a) any adjudication from which an appeal lies as
an appeal from an order, or
(b) any order of dismissal for default.
Explanation.-A decree is preliminary when further
G
proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication
completely disposes of the suit. It may be partly preliminary
and partly final."
•
H A decree therefore may denote final adjudication between
~
.. BIKOBA DEORA GAIKWAD & ORS. v. HI RABAi
MARUTIRAO GHORGARE [S.B. SINHA, J.]
1045

the parties and against which an appeal lies, but only when a A
suit is completely disposed of, thereby a final decree would
come into being.

There cannot be any doubt whatsoever that a decree may
be partly preliminary and partly final. lttias not been contended
that the parties have partitioned the joint properties by metes B
~-_,,.

and bounds and they are in separate possession of the lands
allotted to them.

Section 54 of the Code in effect and substance confers a
duty upon the Court. The said provision must be read in the c
context of the Order XXVI Rule 13 of the Code and/or Section
51, Order XXI Rule 11 thereof. It is not in dispute that in the
State of Maharashtra the practice to get the properties parti-
tioned by a District Collector still continues.
)>

~·
10. Section 54 only provides for a ministerial functions of D
a court. It cannot be termed to be an execution proceeding.
11. It is now well settled that for the purposes of construing
the nature of the decree one has to look to the terms thereof
rather than speculate upon the Court's intentions. {See
Ramanathan Chetty v. Alagappa Chetty & ors. [l.L.R 53 Ma- E
dras 378]}

12. A bare perusal of Section 54 read with Order XX Rule
~·
i 18 of the Code leaves no manner of doubt that the application
filed before the Court to send decree and papers to Collector F
to carry out partition was not and could not have been an appli-
cation in execution.

If it was not an application for execution, the question of
the application of the provisions of the Limitation Act would not
apply. G
j,

""' Reliance has been placed by Mr. Sundaravardan on
Venkata Reddy & ors. v. Pethi Reddy [AIR 1963 SC 992].
Therein this Court was concerned with the meaning of the words
'final decision' vis-a-vis 'preliminary decree for partition' and in
H
I
1046 SUPREME COURT REPORTS [2008] 9 S.C.R.

...
A that factual backdrop, it was opined: •
"It is not clear from the judgment what the contingencies
referred to by the High Court are in which a preliminary
decree can be modified or amended unless what the
learned judges meant was modified or amended in appeal
B or in review or in revision or in exceptional circumstances
by resorting to the powers conferred by Ss. 151 and 152 ...
of the Code of Civil Procedure. If that is what the High
Court meant then every decree passed by a Court
including decrees passed in cases which do not
c contemplate making of a preliminary decree are liable to
be "modified and amended". Therefore, ifthe reason given
by the High Court is accepted it would mean that no finality
attaches to decree at all. That is not the law. A decision
is said to be final when, so far as the Court rendering it is
D concerned, it is unalterable except by resort to such ...
provisions of the Code of Civil Procedure as permit its ·1

reversal, modification or amendment. Similarly, a final
decision would mean a decision which would operate as
res judicata between the parties if it is not sought to be
E modified or reversed by preferring an appeal or a revision·
or a review application as is permitted by the Code. A
preliminary decree passed, whether it is in a mortgage
suit or a partition suit, is not a tentative decree but must,
in so far as the matters dealt with by it are concerned, be +
~

F regarded as conclusive. No doubt, in suits which
contemplate the making of two decrees a preliminary
decree and a final decree - the decree which would be
executable would be the final decree. But the finality of a
decree or a decision does not necessarily depend upon
its being executable. The legislature in its wisdom has
G
thought that suits of certain types should be decided in
stages and though the suit in such cases can be regarded .
as fully and completely decided only after a final decree is
made the decision of the court arrived at the earlier stage
also has a finality attached to it. It would be relevant to
H
BIKOBA DEORA GAIKWAD & ORS. v. HIRABAI 1047
MARUTIRAO GHORGARE [S.B. SINHA, J.]

refer to S. 97 of the Code of Civil Procedure which provides A
that where a party aggrieved by a preliminary decree does
not appeal from it, he is precluded from disputing its
correctness in any appeal which may be preferred from
the final decree. This provision thus clearly indicates that
as to the matters covered by it, a preliminary decree is B
regarded as embodying the final decision of the court
passing that decree.

13. The distinction between 'a final decree' and 'finality of
a decree' is obvious enough to merit a detailed discussion. A
decree whether preliminary or final is binding on the parties but C
the same does not mean that all decrees would be final de-
crees.

Section 2(2) of the Code clearly shows as to the nature of
the decrees that the court may pass.
D
14. It is in the aforementioned context, the applicability of
the provisions of Articles 136 and 137 of the Limitation Act may
be noticed, which read as under:
Description of Period of Time from which period
application Limitation begins to run E
136. For the execution Twelve [When] the decree or
of any decree years order becomes enforce-
(other than a able or where the decree
decree granting a or any subsequent order
mandatory directs any. payment of F
injunction) or money or the delivery of
order of any civil any property to be made
court. at a certain date or at re-
curring periods, when de-
fault in making the pay-
ment or delivery in re- G
spec! of which execution
> is sought, takes place:
Provided that an applica-
tion for the enforcement
or execution of a decree H
1048 SUPREME COURT REPORTS [2008) 9 S.C.R.

A
granting a perpetual in-
junction shall not be sub-
ject to any period of limi-
tation.

PART II-OTHER APPLICATIONS
B
137. Any other applica- Three When the right to apply
tion for which no years accrues.
period of limitation
js provided else-
where in this divi-
C sion.

Article 136 would apply when an application for execution
of any decree (other than a decree granting a mandatory in-
junction) or order of any civil court is to be filed. An application
D for taking steps towards passing a final decree is not an execu-
tion application. The said provision, therefore, cannot have any .
application in respect thereof.
Article 137 is a residuary provision which applies when
no period of limitation is provided elsewhere in the Division.
E An application asking the court to perform its duty in terms of
Section 54 of the Code can be filed at any point of time in a
case where a right to apply accrues in a decree holder. There-
fore, no period of limitation is to be prescribed as there is none.
This aspect of the matter has been considered in Shankar •
F Ba/want Lokhande (Dead) by LRs. v. Chandrakant Shankar ~

Lokhande & Anr. (1995) 3 SCC 413 wherein it has been held:
"8. It has r>een seen that after passing of preliminary decree
for partition, the decree cannot be made effective without
G a final decree. The final decree made in favour of the first
respondent is only partial to the extent of his 1/61h 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
H
Bl KOBA DEORA GAIKWAD & ORS. v. HI RABAi 1049
MARUTIRAO GHORGARE [S.B. SINHA, J.]

determining the rights of the parties with regard to the A
properties for partition in terms of the declaration of 1/61h
and 5/61h shares of the first respondent and the appellants
so as to entitle the party to make an application for
execution of the final decree.
10. As found earlier, no executable final decree has been B
drawn working out the rights of the parties dividing the
'--+ properties in terms of the shares declared in the preliminary
decree. The preliminary decree had only declared the
shares of the parties and properties were liable to the
partitioned in accordance with those shares by a c
Commissioner to be appointed in this behalf. Admittedly,
no Commissioner was appointed a_nd no final decree had
been passed relating to all."
Recently, albeit on a different factual backdrop, this Court
D
in Hasham Abbas Sayyad v. Usman Abbas Sayyad and ors.
~
(2007) 2 sec 355 opined:
' "9. A final decree proceeding may be initiated at any point
of time. No limitation is provided therefor. However, what
can be executed is a final decree, and not a preliminary E
decree, unless and until final decree is a part of the
preliminary decree."
For the reasons aforementioned, Articles 136 and 137 of
the Limitation Act, 1963 will have no application. Even other-
? wise, the contention of the appellants is wholly unsustainable. F
Such a contention had been raised even in the earlier objec-
tions. They were rejected. The appeals preferred thereagainst
have also been dismissed. In that view of the matter, the appel-
lants could not have agitated the same issue by filing another
objection. G
15. For the reasons aforementioned, there is no merit in
~ this appeal, which is dismissed accordingly with costs.
~
Counsel's fee assessed at Rs.25,000/-.
D.G. Appeal dismissed. H