BIMAL KUMAR & ANOTHERversusSHAKUNTALA DEBI & OTHERS

                     [2012] 1 S.C.R. 195


                BIMAL KUMAR & ANOTHER                               A
                               v.
              SHAKUNTALA DEBI & OTHERS
              (Civil Appeal No. 2524 of 2012)

                  "FEBRUARY 27, 2012
                                                                    B
    [DALVEER BHANDARI AND DIPAK MISRA, JJ.]

    DECREE:

    Final decree and Preliminary decree - Distinction               c
between -Discussed.

      Preliminary decree - Compromise application - Tenor of
application showed that the parties to the compromise settled
the entire controversy and they were in separate and exclusive
possession of the properties allotted to their respective shares    D
- The compromise application did not contain any clause
regarding the future course of action - Whether the decree
passed by the court of first instance on the basis of
compromise had become enforceable or it had the status of
a preliminary decree requiring completion of a final decree         E
proceeding to make it executable - Held: The parties were
absolutely conscious and rightly so, that their rights had been
fructified and their possession had been exclusively
determined - They were well aware that the decree was final
in nature as their shares were allotted and nothing remained        F
to be done by metes and bounds - Their rights had attained
finality and no further enquiry from any spectrum was required
to be carried out - The whole thing had been embodied in the
decree passed on the foundation of compromise - Thus the
compromise decree was the final decree.                             G

     LIMITATION ACT, 1963: Article 136 - Execution
application - Whether hit by bar of limitation - Partition suit -
Predecessor of appellant one of the defendant proceeded ex
                              195                                   H
    196      SUPREME COURT REPORTS                [2012] 2 S.C.R.


A parte - Compromise decree - Subsequent suit for partition
   filed by appellants on the ground that earlier decree was
   obtained by fraud - Dismissed - Execution application filed
 . after limitation period - Objections by appellants that execution
   proceeding was barred by limitation - Held: There was no stay
B of the earlier judgment or any proceedings emanating
   therefrom - There was no impediment or disability in the way
   of the decree holder to execute the decree but the same was
   not done - Therefore, initiation of execution proceedings was
   indubitably barred by limitation.
c
          Words and phrases: Compromise/Settlement - Meaning
    of.

         A partition suit was compromised between the
    parties. 'K', the predecessor of the appellants although
D   had appeared in the suit and filed written statement,
    however, thereafter chose not to contest. The
    compromise petition stated that the parties were in
    separate and exclusive possession of the properties
    respectively belonging to them and had obtained
E   separate and exclusive possession of the properties
    allotted to their respective shares. The tried court accepted
    the petition of compromise and passed a compromise
    decree on 3.4.1964 treating 'K' ex parte. 'K' initiated a
    fresh partition suit on the ground that the earlier decree
F   was obtained by fraud. The said suit was dismissed on
    27th August, 1994. The appeal thereagainst was
    dismissed for want of prosecution on 6.1.2004. At this
    juncture, the respondents filed execution case seeking
    execution of the compromise decree. In the meantime, 'K'
G   died and the execution was levied against his legal heirs,
    the appellants. An objection was raised by the appellants
    that the execution proceeding was barred by limitation.
    The Sub-Judge dismissed the execution proceedings on
    the ground that it was absolutely barred by limitation. The
H   single judge of the High Court allowed the revision on the
  BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &           197
                   ORS.
ground that the execution case was not barred by           A
limitation.

     The questions which arose for consideration in the
instant appeal were whether the decree passed by the
court of first instance on the basis of compromise had     8
become enforceable or it had the status of a preliminary
decree requiring completion of a final decree proceeding
to make it executable and; whether the execution
proceeding was untenable being hit by the law of
limitation.                                                C
    Allowing the appeal, the Court

     HELD: 1. Perusal of the tenor of the entire
compromise application showed that the parties to the
compromise settled the entire controversy. The D
defendant No. 3 who was the predecessor-in-interest of
the appellants was not allotted any share. As is
perceptible from the terms of the compromise which
formed a part of the decree, the parties had conceded that
they were in separate and exclusive possession of the E
properties respectively belonging to them and further had
obtained separate and exclusive possession of the
properties allotted to their respective shares. Thus, their
respective shares and exclusive possession were
admitted on the basis of the said compromise petition and F
a decree had been drawn up. The Court had taken note
of the contents of the compromise wherein it had been
prayed that the decree be passed in accordance with the
terms of the compromise. It was clearly evincible that the
Court had proceeded on the basis that it was finally G
disposing of the suit in accordance with the terms set out
 in the compromise petition. The factum of exclusive
 possession had also been recorded in the application of
compromise. It had been clearly stated that parties have
been put in separate possession of the various H
        198   SUPREME COURT REPORTS              [2012] 2 S.C.R.


A immovable properties. Even in the counter affidavit filed
  by the respondents, it was admitted that possession had
  remained with the parties as per the allotment. [Paras 16,
  17) [206~8-F]
   ..
8 ···    2. 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 pursuant to the
    preliminary decree, the rights of the parties are finally
C determined and a decree is passed in accordance with
    such determination, which is the final decree. It is clear
    that in the case at hand, the parties entered into a
    compromise and clearly admitted that they were in
    separate and exclusive possession of the properties and
    the same had already been allotted to them. It was also
0
    admitted that they were in possession of their respective
    shares and, therefore, no final decree or execution was
    required to be filed. It is demonstrable that the
    compromise application did not contain any clause
E regarding the future course of action. The parties were
    absolutely conscious and rightly so, that their rights had
    been fructified and their possession had been exclusively
    determined. They were well aware that the decree was
    final in nature as their shares were allotted and nothing
F remained to be done by metes and bounds. Their rights
    had attained finality and no further enquiry from any
    spectrum was required to be carried out. The whole thing
    had been embodied in th'e· decree passed on the
    foundation of compromise. [para 22, 23] [209-D-G-H;
G 210-8]
       3. The term 'compromise' essentially means
  settlement of differences by mutual consent. In such
  process, the adversarial claims come to rest. The cavil
  between the parties is given a decent burial. A
H compromise which is arrived at by the parties puts an
  BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &                199
                   ORS.
end to the litigative battle. Sometimes the parties feel that   A
it is an unfortunate bitter struggle and allow good sense
to prevail to resolve the dispute. In certain cases, by
intervention of well-wishers, the conciliatory process
commences and eventually, by consensus and
concurrence, rights get concretised. A reciprocal               B
settlement with a clear mind is regarded as noble. It
signifies magnificent and majestic facets of the human
mind. The exalted state of affairs brings in quintessence
of sublime solemnity and social stability. In the instant
case, as the factual matrix would reveal, a decree came         C
to be passed on the bedrock of a compromise in entirety
from all angles leaving nothing to be done in the future.
The curtains were really drawn and the Court gave the
stamp of approval to the same. Thus, the inescapable
conclusion is that the compromise decree dated                  D·
03.04.1964 was a final decree. [Para 24] [210-C-F]
     4. It is well settled in law that a preliminary decree
declares the rights and liabilities, but in a given case, a
decree may be both preliminary and final and that apart,
a decree may be partly preliminary and partly final. What       E
is executable is a final decree and not a preliminary
decree unless and until the final decree is a part of the
preliminary decree. That apart, a final decree proceeding
may be initiated at any point of time. [Para 27] [211-G-H;
212-A-B]                                                        F

     Rachakonda Venkat Rao And Others v. R. Satya Bai (0)
by L.R. And Another AIR (2003) SC 3322: 2003 (3) Suppl.
SCR 629; Renu Devi v. Mahendra Singh and others AIR
2003 SC 1608: 2003 (1) SCR 820 - relied on.                     G
    Muzaffar Husain v. Sharafat Hussain AIR 1933 Oudh
562; Raghubir Sahu v. Ajodhya Sahu AIR 1945 Pat 482 -
approved.
    5. Perusal of the Article 136 of Limitation Act showed      H
   200       SUPREME COURT REPORTS            [2012] 2 S.C.R.


A that an application for execution of a decree (other than
  a decree granting a mandatory injunction) or order of any
  civil court is to be filed within a period of twelve years. In
  the case at hand, the compromise decree had the status
  of a final decree and was immediately executable. The
B period during which the suit and appeal preferred by the
  appellants remained pendency was not to be excluded
  for the purpose of execution. There was no stay of the
  said judgment or any proceedings emanating therefrom.
  In the absence of any interdiction from any court, the
C decree-holder was entitled to execute the decree. There
  was no impediment or disability in the way of the
  respondents to execute the decree but the same was not
  done. Therefore, the irresistible conclusion is that the
  initiation of execution proceedings was indubitably
D barred by limitation. Thus analyzed, the reasons ascribed
  by the single Judge are absolutely unsustainable. The
  period of limitation stipulated under Article 136 of the Act
  cou.ld not have been condoned. The reliance placed on
  the decision in Bharti Devi is totally misconceived
E inasmuch as in the said case, the execution proceeding
  was initiated for permanent injunction. [Paras 30, 32, 35)
  [213-C; 217-E-H; 218-A-B]
      Hasham Abbas Sayyad v. Usman Abbas Sayyad and
  others (2007) 2 SCC 355 : 2006 (10) Suppl.SCR 740;
F Bikoba Deora Gaikwad and others v. Hirabai Marutirao
  Ghorgare and others (2008) 8 SCC 198: 2008 (9) SCR 1038;
  Dr. Chiranji Lal (DJ by LRs. v. Hari Das (DJ By LRs., (2005)
  10 SCC 746 : 2005 (1) Suppl. SCR 359; Ram Bachan Rai
  and others v. Ram Udar Rai and others (2006) 9 sec
G 446~2006 (1) Suppl. SCR 896; Ratan Singh v. Vijay Singh
  and Ors. 2000 (8) SCALE 214; Manohar v. Jaipa/sing AIR
  2008 SC 429: 2007 (12) SCR 364 - relied on.,
      Bharti Devi v. Fagu Mahto 2009 (3) JLJRr~o: AIR 2010
H Jhar 10 - held inapplicable.




       I I
  BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &                     201
                   ORS.
                      Case Law Reference:                           A

AIR 2010 Jhar 10              held inapplicable Paras 13,
                                                26, 35

2003 (3) Suppl. SCR 629         relied on           Para 18
                                                                    B
AIR 1933 Oudh 562               approved            Para 19

 AIR 1945 Pat 482               approved            Para 20

2003 (1) SCR 820                relied on           Para 21

 2006 (10) Suppl. SCR 740 relied on                 Para 27         c
 2008 (9) SCR 1038              relied on           Para 28

 2005 (1) Suppl. SCR 359        relied on           Paras 30,
                                                    31
                                                                    D
 2006 (1) Suppl. SCR 896        relied on           Para 31

 2000 (8) SCALE 214             relied on           Para 32

 2007 (12) SCR 364              relied on           Para 34
                                                                    E
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2524 of 2012.

    From the Judgment & Order dated 19.08.2009 of the High
Court of Jharkhand at Ranchin Civil Revision No. 53 of 2007.
                                                                    F
    Ajit Kumar Sinha, Ambhoj Kumar Sinha for the Appellants.

    S.S. Shamshery, Bhupendar Yadav, Babita Yadav, Bhakti
Vardhan Singh, R.C. Kohli for the Respondents.

    The Judgment of the Court was delivered by                      G

    DIPAK MISRA, J. 1. Leave granted.

    2. In this appeal, the assail is to the order dated 19.9.2009
passed by the learned single Judge of Jharkhand High Court
at Ranchi in C.R. No. 53 of 2007 b~ which he has dislodged          H
    202      SUPREME COURT REPORTS                [2012] 2 S.C.R.


A the order dated 10.7.2006 passed by the learned Sub-Judge
  (I), Ranchi, whereby he had dismissed the Execution Case No.
  8 of 2004 filed by the respondents as being barred by limitation.

       3. Filtering the unnecessary details, the facts. which are
  requisite to be frescoed for the purpose of disposal of the
8
  present appeal are that one Kanilal Kasera filed a Partition Suit
  No. 131 of 1962 against his father, Nanak Kasera, and other
  brothers. The suit was compromised leaving aside Kishori Lal
  Kasera, the father of the present appellants, and a joint petition
  of compromise between the plaintiff and the defendant Nos. 1,
C 2, 4 to 9 and 11 to 18 was filed. It is worth noting that Kishori
  Lal Kasera had appeared in the suit and filed the written
  statement but thereafter chose not to contest.

         4. The petition of compromise contained that the defendant
D Nos. 1, 9, 11 and 12 had relinquished and given up all their
   interests in item Nos. 3 and 8 of the suit schedule of property,
   being Holding No. 285 of new holding No. 509A of Ward No. II
   situated on portion of Municipal Survey Plot No. 621 and
 . Holding No. 431 of Ward No. 1 situated on Municipal Survey
E Plot No. 902, and further declared that they had no claim or
   concern with any other properties involved in the suit; that the
   business, namely, "SEVEN BROTHERS STEEL FURNITURE
   WORKS", item 5 of the schedule, belonged exclusively to the
   defendant No. 2, Moti Lal Kasera, and neither the plaintiff nor
F any of the other defendants either ever had or shall ever have
   any claim or interest; and that one half of the house and
   premises comprised in Municipal Holding No. 431, Ward No.
   1, item 3 of the schedule, and half of Holding No. 509 A of Ward
   II, situated on portion of M.S. Plot No. 631, item 2 of the
G schedule, shall belong to the defendant No. 2 with all the
   liabilities and outstanding dues and the plaintiff and the other
   defendants shall have no liabilities or interest in tne said prop
   rties; and that the business carried on under the name of
   'Chotanagpur Tin Works', item 6A of the schedule, was the sole
   separate business of the defendant No. 5, Prakash Kumar
H
  BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &                       203
           ORS. [DIPAK MISRA, J.]
Kasera, and the plaintiff or the other defendants had no claim          A
on the said property.

      5. The application further contained that the partition of the
house and premises comprised in Holding No. 431 of Ward I,
item 3 of the schedule, marked in green colour in the exhibit,
                                                                        B
shall belong exclusively to the defendant no. 4, Mohan Lal
Kasera, and neither the plaintiff nor the other defendants shall
have any claim or interest; that the business of iron shop at
Bazaar Tan Ranchi, item 6 (c) of the schedule, was the separate
and exclusive business of the defendant No. 6, Surendra Lal             C
Kasera, and none others had any claim or interest and the
portion of the building and premises comprised in Municipal
Holding No. 431 of Ward No. I, item 3 of the schedule, marked
in yellow colour, shall also belong to the defendant No. 6 and
no one else had any claim or interest; that the portion of the
building and premises comprised in Municipal Holding No. 431            D
of Ward No. I, item 3 of the schedule, marked in blue colour,
and one-half of the shop premises comprised in Holding No.
509 A over portion of M.S. Plot No. 621 being item No. 2 of
 the schedule to the plaint shall exclusively belong to the plaintiff
 and he shall have absolute right over the same.                        E
     6. That apart, the plaintiff had agreed to pay up all
outstanding dues of Bindrilal Agarwalla against the defendant
No. 1 and none of the defendants shall be liable for the same.

     7. It was also agreed upon that the House situated on
                                                                        F
Holding 6 Ward II of the Ranchi Municipality being comprised
of Khata No. 71 plot No. 72 area 61 decimal and plot No. 79
area 7~ decimal total area measuring 14 decimal, being item
No. 4 of the schedule and the house and premises comprised
of Holding No. 180 Ward Ill being survey plot No. 92 area 0.30          G
Karies and Municipal Survey Plot No. 92 area 0.063 Karies
total area 0.093 Karies of Hajamtolio, Ranchi being item No.
5 were separate and exclusive properties of Smt. Rama Devi
and shall belong exclusively to the defendant No. 7, Srimati
Rama Devi, the widow of Hira Lal Kasera, and no one else shall          H
    204       SUPREME COURT REPORTS              [2012] 2 S.C.R.


A have any claim or concern in the said property; that the shop·
  premises being holding No. 509 B of Ward II of Ranchi
  Municipality situated on portion of M.S. Plot No. 621 being item
  No. 1 of the schedule and the house premises comprised of
  Holding No. 133(g) of Ward 11 being item No. 8 and the
B properties comprised Holding No. 145 A of Ward No. I
  measuring 6% decimals being plot No. 268 of Khata No. 34 of
  Village Konka, being item No. 9 of the schedule belonged to
  the defendant No. 8, Sreemati Munitri Debi, wife of Prakash
  Lal Kasera, the defendant No. 5, and none had any claim or
c interest; that the house and the premises situated at Madhukam,
  Ranchi comprised in Holding No. 318 of Ward I being item No.
  10 of the schedule was the property of the defendant No. 13,
  Shreemati Deojani Debi, wife of Moti Lal Kasera, the defendant
  No. 2.

D        8. It was stipulated that the business and properties
    mentioned in item Nos. 6(b) and 7 were erroneously included
    in the suit.

       9. Be it noted, in Clause (K) of the petition of compromise,
E it was clearly stated as follows: -

          "k) That the parties are in separate and exclusive
          possession of the properties respectively belonging to
          them and have obtained separate and exclusive
          possession of the properties allotted to their respective
F         shares."

          10. The learned trial Judge being satisfied accepted the
    petition of compromise and passed a compromise decree on
    3.4.1964 treating Kishori Lal Kasera ex parte:
G
        11. When the matter stood thus, the legal representatives
  of Kishori Lal Kasera, the present appellants, initiated a fresh
  partition suit No. 49 of 1973 on the ground that the earlier
  decree was obtained by fraud. In the said suit, they claimed 1/
H 11th share of the property for themselves which was involved
     BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &                  205
              ORS. [DIPAK MISRA, J.]
in the earlier suit being P.S. No. 131 of 1962. The said suit was     A
dismissed on 27th August, 1994. Being dissatisfied with the
said decision, Kishori Lal Kasera preferred Title Appeal No.
109 of 1994 which was dismissed for want of prosecution on
6.1.2004. At this juncture, the respondents herein filed
execution case No. 8 of 2004 seeking execution of the decree          B
passed in P .S. No. 131 of 1962. Be it noted, in the meantime,
Kishori Lal Kasera had breathed his last and, therefore, the
execution was levied against the legal heirs, the appellants
 herein.

     12. An objection was raised by the appellants that the
                                                                      c
execution proceeding was barred by limitation and hence,
deserved to be dismissed. The learned Sub-Judge dismissed
the execution proceedings on the ground that it was absolutely
barred by limitation.
                                                                      D
     13. Aggrieved by the said order, the respondents preferred
C.R. No. 53 of 2007 under Section 115 of the Code of Civil
Procedure. (for short 'the CPC') and the learned single Judge
allowed the said Revision on the ground that the execution case
preferred by the revisionists was not barred by limitation. For       E
the said purpose, the learned single Judge placed reliance on
the decision in Bharti Devi v. Fagu Mahto 1• The legal
substantiality of the said order is the subject-matter of challenge
in this appeal.
                                                                      F
    14. We have heard Mr. Amboj Kumar Sinha, learned
counsel for the appellants, and Mr. S.S. Shamshery, learned
counsel for the respondents.

     15. The two seminal and spinal issues that had emanated
before the executing court and the High Court and have also           G
spiralled to this Court are whether the decree passed by the
court of first instance on the basis of compromise had become
enforceable or it had the status of a preliminary decree
requiring completion of a final decree proceeding to make it
1.    2009 (3) JLJR 90 : AIR 2010 Jhar 10.                            H
    206        SUPREME COURT REPORTS                [2012] 2 S.C.R.


A   executable and whether the execution proceeding was
    untenable being hit by the law of limitation.

        16. We shall advert to the first issue first. On a perusal of
  the tenor of the entire compromise application, we are of the
8 considered view that the parties to the compromise settled the
  entire controversy. The defendant No. 3 who was the
  predecessor-in-interest of the present appellants was not
  allotted any share. As is perceptible from the terms of the
  compromise which formed a part of the decree, the parties had
C conceded that they were in separate and exclusive possession
  of the properties respectively belonging to them and further had
  obtained separate and exclusive possession of the properties
  allotted to their respective shares. Thus, their respective shares
  and exclusive possession were admitted on the basis of the
  said compromise petition and a decree had been drawn up.
D The Court had taken note of the contents of the compromise
  wherein it had been prayed that the decree be passed in
  accordance with the terms of the compromise. It is clearly
  evincible that the Court had proceeded on the basis that it was
  finally disposing of the suit in accordance with the terms set out
E in the compromise petition. The factum of exclusive possession
  had also been recorded in the application of compromise. It
  had been clearly stated that parties have been put in separate
  possession of the various immovable properties.

F        17. Quite apart from the above, in the counter affidavit filed
    by the respondents, it is admitted that possession had
    remained with the parties as per the allotment. It is profitable
    to reproduce the said portion of the counter affidavit:-

          "It is pertinent to mention here that the parties who were
G         allotted the share as per the decree were stated to be in
          possession of their share and it was written in the judgment
          that no preliminary, final decree or execution was required
          to be filed. Though Kishori Lal Kasera had full knowledge
          of the compromise decree but he did not challenge the
H         decree within the period of limitation therefore the
     BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &                  207
              ORS. [DIPAK MISRA, J.)
      compromise decree became final and absolute against all        A
      the parties, including Kishori Lal Kasera."

      18. Despite the aforesaid, a contention has been advanced
by the learned counsel for the respondents that in a suit for
partition, drawing up of a final decree is imperative. In this       B
context, we may usefully refer to the decision in Rachakonda
Venkat Rao And Others v. R. Satya Bai (0) by L.R. And
Another2 wherein it has been stated as follows:-

      "The compromise application does not contain any clause
      regarding future course of action which gives a clear          C
      indication that nothing was left for future on the question
      of partition of the joint family properties. The curtain had
      been finally drawn."

After so stating, the Bench proceeded to observe as follows:-        D

      "The decree as a matter of fact le aves nothing for future.
      As noticed earlier in a preliminary decree normally the
      court declares the shares of the parties and specifies the
      properties to be partitioned in the event of there being a
      dispute about the properties to be partitioned. After          E
      declaring the shares of the parties and the properties to
      be partitioned, the Court appoints a Commissioner to
      suggest mode of partition in terms of 0. XXVI, R. 13,
      C.P.C. A perusal of Order XXVI, R. 13 C.P.C. shows that
      it comes into operation after a preliminary decree for          F
      partition has been passed. In the present case, there was
      no preliminary decree for partition and, therefore, R. 13 of
      0. XXVI does not come into operation. If the plaintiffs
      considered the decree dated 13th July, 1978 as a
      preliminary decree, why did they wait to move the              G
      application for final decree proceedings for 13 years? The
      only answer is that the plaintiffs knew and they always
      believed that the 1978 decree was a final decree for
      partition and it was only passage of time and change in
2.   AIR 2003 SC 3322 • 2003 7 sec 452.                              .H
     208        SUPREME COURT REPORTS                  [2012] 2 S.C.R.


A          value of the properties which was not up to their
           expectations that drove plaintiffs to move such an
           application."

           19. In Muzaffar Husain v. Sharafat Hussain 3, it has been
    . held as follows:-
8
           "We think the decree passed by the civil Court should be
           treated as a final order for effecting a partition. It is true
           that the decree was passed on the basis of a compromise
           filed by the parties, but the fact remains that it was passed
C          in a partition suit, and had the effect of allotting a specific
           portion of the property to the plaintiff as his share in the
           property. The conclusion at which we have arrived is
           supported by a decision of the Madras High Court in
           Thiruvengadathamiah v. Mungiah 4"
D
           20. In Raghubir Sahu v. Ajodhya Sahu 5, the Division
     Bench of Patna High Court had ruled thus: -

           "In the present case, the decree was passed on
           compromise. It was admitted that by the compromise, the
E          properties allotted to the share of each party were clearly
           specified and schedules of properties allotted to each were
           appended to the compromise petition. Therefore, no
           further inquiry was at all necessary. In such circumstances,
           the decree did not merely declare the rights of the several
F          parties interested in the properties but also allotted the
           properties according to the respective shares of each
           party. Therefore, it was not a preliminary decree but it was
           the final decree in the suit"

G          21. In Renu Devi v. Mahendra Singh and others 6 , the
     effect of a compromise decree and allotment of shares in
     3.   AIR 1933 Oudh 562.
     4.   (1912) ILR 35 Mad 26.
     5.   AIR 1945 Pat 482.
H    6.   AIR 2003 SC 1608.
   BIMAL KUMAR & ANR. Ii. SHAKUNTALA DEBI &                    209
            ORS. [DIPAK MISRA, J.]

 pursuance of the said decree was dealt with. The two- Judge           A
 Bench referred to the decisions in Raghubir Sahu v. Ajodhya
 Sahu (supra) and Muzaffar Husain (supra) and opined that the
 law had been correctly stated in the said authorities.

        22. In the said case, after referring to CPC by Mulla, this    8
  Court, while drawing a distinction between the preliminary and
  the final decree, has stated that a preliminary decree declares
  the rights or shares of the parties to the partition. Once the
  shares have been declared and a further inquiry still remains
  to be done for actually partitioning the property and placing the    C
  parties in separate possession of the divided property, then
  such inquiry shall be held and pursuant to the result of further
  inquiry, a final decree shall be passed. 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 pursuant to     D
  the preliminary decree, the rights of the parties are finally
· determined and a decree is passed in accordance with such
  determination, which is the final decree. Thus, fundamentally,
  the distinction between preliminary and final decree is that: a
  preliminary decree merely declares the rights and shares of the      E
  parties and leaves room for some further inquiry to be held and
  conducted pursuant to the directions made in the preliminary
  decree which inquiry having been conducted and the rights of
  the parties finally determined a decree incorporating such
  determination needs to be drawn up which is the final decree.        F

      23. Applying the principles laid down in the aforesaid
 authorities, it is graphically clear that in the case at hand, the
 parties entered into a compromise and clearly admitted that
 they were in separate and exclusive possession of the                 G
 properties and the same had already been allotted to them. It
 was also admitted that they were in possession of their
 respective shares and, therefore, no final decree or execution
 was required to be filed. It is demonstrable that the compromise
 application does not contain any clause regarding the future
                                                                       H
    210       SUPREME COURT REPORTS                 [2012] 2 S.C.R.


A course of action. The parties were absolutely conscious and
  rightly so, that their rights had been fructified and their
  possession had been exclusively determined. They were well ·
  aware that the decree was final in nature as their shares were
  allotted and nothing remained to be done by metes and bounds.
s Their rights had attained finality and no further enquiry from any
  spectrum was required to be carried out. The whole thing had
  been embodied in the decree passed on the foundation of
  compromise.

         24. It is to be borne in mind that the term 'compromise'
C   essentially means settlement of differences by mutual consent.
    In such process, the adversarial claims come to rest:The cavil
    between the parties is given a decent burial. A compromise
    which is arrived at by the parties puts an end to the litigative
    battle. Sometimes the parties feel that it is an unfortunate bitter
D   struggle and allow good sense to prevail to resolve the dispute.
    In certain cases, by intervention of well-wishers, the con~iliatory
    process commences and eventually, by consensus and.
    concurrence, rights get concretised. A reciprocal settlement with
    a clear mind is regarded as noble. It signifies magnificent and
E   majestic facets of the human mind. The exalted state of affairs
    brings in quintessence of sublime solemnity and social stability.
    In the present case, as the factual matrix would reveal, a decree
    came to be passed on the bedrock of a compromise in entirety
    from all angles leaving nothing to be done in the future. The
F   curtains were really drawn and the Court gave the stamp of
    approval to the same. Thus, the inescapable conclusion is that
    the compromise decree dated 03.04.1964 was a final decree.
       25. Presently, we shall dwell upon the issue whether the
G execution levied by the respondents was barred by limitation
  or not. The executing Court, by its order dated 10.07.2006,
  accepted the plea of the present appellants and came to hold
  that the execution petition filed by the decree holder was
  hopelessly barred by limitation. In the Civil Revision, the learned
H Single Judge overturned the decision on several counts; (i) that
      BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &                    211
               ORS. [DIPAK MISRA, J.]
 no steps were taken and no objection was raised by the father          A
 of the opposite parties for setting aside the ex parte decree
 passed in the first suit, if he was aggrieved by it, for about 9
 years, though he had appeared and had full knowledge about
 the first suit; (ii) that as per the compromise decree, the parties
 were in possession of the respective shares allotted to them           8
 and, accordingly, neither preliminary nor final decree was drawn
 up and there was no occasion for the petitioners for filing
 execution case for enforcement of the compromise decree; (iii)
 that the second suit challenging the compromise decree
 passed in the first suit remained pending for about 21 years;          C
 (iv) that the appeal filed against the dismissal of the second
 suit also remained pending for about 10 years; (v) that after the
 appeal was dismissed and the judgment and decree passed
 in the second suit became final, the execution case was filed
 by the petitioner alleging dispossession from the family
 business being run in the ground floor of the building; and (vi)       D
 that on the basis of such allegation, the compromise decree
 passed in the first suit became enforceable.

       26. Apart from the aforesaid reasons, the learned Single
 Judge has opined that after the. execution case was admitted           E
 by the predecessor of the learned Sub-Judge presumably after
 condoning the delay, the successor should not have dismissed
 it on the ground of limitation. He placed reliance on the decision
 rendered in Bharti Devi (supra) and buttressed the reasoning
 that there was no delay in levying of the execution proceeding.        F
 The learned single Judge further took note of the pending Misc.
 Appeal No. 369 of 2008 preferred by the present appellants
 to reinforce the conclusion.

       27. It is well settled in law that a preliminary decree
   declares the rights and liabilities, but in a given case, a decree   G
   may be both preliminary and final and that apart, a decree may
.· be partly preliminary and partly final. It has been so held in
   Rachakonda Venkat Rao v. R. Satya 8aF. It is worth noting
 1.   (2003) 1 sec 452.                                                 H
    212        SUPREME COURT REPORTS               [2012] 2 S.C.R.


A that what is executable is a final decree and not a preliminary
  decree unless and until the final decree is a part of the
  preliminary decree. That. apart, a final decree proceeding may
  be initiated at any point of time. It has been so enunciated in
  Hasham Abbas Sayyad v. Usman Abbas Sayyad and
         8
8 others .
       28. In Bikoba Deora Gaikwad and others v. Hirabai
  Marutirao Ghorgare and others9, a two-Judge Bench of this
  Court has held that only when a suit is completely disposed of,
  thereby a final decree would come into being. In the said case,
C it has also been laid down that an application for taking steps
  towards passing a final decree is not an execution application
  and further, 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 intention.
D
      29. Regard being had to the aforesaid principles and
  having opined that the decree passed on the basis of a
  compromise in the case at hand is the final decree, it is to be
  addressed whether the execution is barred by limitation. Article
E 136 of the Limitation Act (for brevity 'the Act') reads as follows:-
         "Description of     Period of Time from which period
          application        Limitation begins to run
  136. For the         Twelve         When the decree or order
       execution of    years          becomes enforceable or
F
       any decree                     where the decree or any
       (other than a                  subsequent order directs any
       decree granting                payment of money or the
       a mandatory                    delivery of any property to be
       injunction) or                 made at a certain date or at
G      order of any                   recurring periods, when
       civil court.                   default in making the payment
                                      or delivery in respect of which

    8.   (2007) 2 sec 355.
H   9.   (2008) 8 sec 198.
   BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &                      213
            ORS. [DIPAK MISRA, J.]
                                     execution is sought, takes         A
                                   . place;
                                    Provided that an application
                                    for the enforcement or
                                    execution of a · decree
                                    granting a perpetual injunction     B
                                    shall no.t be subject to any
                                    period of limitation."
      30. On a perusal of the said Article, it is quite vivid that an
application for execution of a decree (other than a decree              C
granting a mandatory injunction) or order of any civil court is to
be filed within a period of twelve years. In Dr. Chiranji Lal (DJ
by LRs. v. Hari Das (DJ By LRs. 10, the question arqse whether
a final decree becomes enforceable only when it is engrossed
on the stamp paper. The three-Judge Bench dealing with the
controversy has opined that Article 136 of the Limitation Act           D
presupposes two conditions for the execution of the decree;
firstly, the judgment has to be converted into a decree and
secondly, the decree should be enforceable. The submission
that the period of limitation begins to run from the date when
the decree becomes enforceable, i.e., when the decree is                E
engrossed on the stamp paper, is unacceptable. The Bench,
while elaborating the said facet, proceeded to lay down as
under: -

     "24. A decree in a suit for partition declares the rights of       F
     the parties in the immovable properties and divides the
     shares by metes and bounds. Since a decree in a suit for
     partition creates rights and liabilities of the parties with
     respect to the immovable properties, it is considered as
     an instrument liable for the payment of stamp duty under           G
     the Indian Stamp Act. The object of the Stamp Act being
     securing the revenue for the State, the scheme of the
     Stamp Act provides that a decree of partition not duly
     stamped can be impounded and once the requisite stamp
10. c2005) 10 sec 746.                                                  H
    · 214        SUPREME COURT REPORTS                [2012] 2 S.C.R.


A           duty along with penalty, if any, is paid the decree can be
            acted upon.

         25. The engrossment of the final decree in a suit for
          partition would relate back to the date of the decree. The
          beginning of the period of limitation for executing such a
B
          decree cannot be made to depend upon date of the
          engrossment of such a decree on the stamp paper. The
          date of furnishing of stamp paper is an uncertain act, within
          the domain, purview and control of a party. No date or
          period is fixed for furnishing stamp papers. No rule has
c         been shown to us requiring the court to call upon or give
          any time for furnishing of stamp paper. A party by his own
          act of not furnishing stamp paper cannot stop the running
          of period of limitation. None can take advantage of his own
          wrong. The proposition that period of limitation would
D         remain suspended till stamp paper i~ furnished and decree
          engrossed thereupon and only thereafter the period of
          twelve years will begin to run would lead to absurdity.
        · In Yeshwant Deorao Deshmukh v. Walchand Ramchand
        . Kothari [1950 SCR 852: AIR 1951 SC 16] it was said that
E         the payment of court fee on the amount found due was
          entirely in the power of the decree holder and there was
         .nothing to prevent him from paying it then and there; it was
          a deeree capable of execution from the very date it was
          passed.
F
            26. Rules of limitation are meant to see that parties do not
            resort to dilatory tactics, but seek their remedy promptly.
            As above noted, there is no statutory provision prescribing
            a time limit for furnishing of the stamp paper for engrossing
            the decree or time limit for engrossment of the decree on
G
            stamp paper and there is no statutory obligation on the
            Court passing the decree to direct the parties to furnish
            the stamp paper for engrossing the decree. In the present
            case the Court has not passed an order directing the
            parties to furnish the stamp papers for the purpose of
H
   BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &                     215
            ORS. [DIPAK MISRA. J.]
     engrossing the decree. Merely because there is no                 A
     direction by. the Court to furnish the stamp papers for
     engrossing of the decree or there is no time limit fixed by
     law, does not mean that the party can furnish stamp papers
     at its sweet will and claim that the period of limitation
     provided under Article 136 of the Act would start only            B
     thereafter as and when the decree is engrossed
     thereupon. The starting of period of limitation for execution
     of a partition decree cannot be made contingent upon the
     engrossment of the decree on the stamp paper."

     31. In Ram Bachan Rai and others v. Ram Udar Rai and              C
others 11 , a contention was advanced to the effect that as the
cost for enforcement of decree was not quantified, the period
of limitation could not have commenced from the date of
judgment and decree. The Court referred to the decision in Dr.
Chiranji Lal (~upra) and, after referring to paragraphs 24 and         D
25 of the said decision, expressed the view in unequivocal
terms that the inevitable conclusion was that the suit was barred
by limitation.

        32. In the present case, the learned counsel for the           E
  respondents, in support of the order passed in Civil Revision,
  has canvassed that when a suit was filed for declaring the earlier
  compromise decree to have been obtained by fraud and the
  same remained pending for more than 21 years, the period of
  limitation commenced only after the suit and the appeal arising      F
  therefrom were dismissed since only on the conclusion of the
  said proceeding, the decree became enforceable and further,
  the time consumed in the said proceeding is to be excluded
· for computation of the period of limitation under Article 136 of
  the Limitation Act. We have already held that the decree was         G
  a final decree. Therefore, it was imme~iately executable. The
  question, thus, would be 'was the time arrested?' On a query
  being made, it was fairly conceded at the Bar that at no point
  of time, there was any order by any court directing stay of

11. (2006J 9 sec 446.                                                  H
    216       SUPREME COURT REPORTS                    [2012] 2 S.C.R.


A operation of the judgment and decree passed in P.S. No. 131
  of 1962. The question that emanates for consideration is
  whether the period during which the suit and appeal preferred
  by the appellants remained pending is to be excluded for the
  purpose of limitation. In this context, we may usefully refer to
B the dictum in Ratan Singh v. Vijay Singh and Ors. 12 wherein,
  while dwelling upon the concept of enforceability of a decree
  and the effect of an order of stay passed by the appellate court,
  the Bench stated thus:

          "8. When is a decree becoming enforceable? Normally a
c         decree or order becomes enforceable from its date. But
          cases are not unknown when the decree becomes
          enforceable on some future date or on the happening of
          certain specified events. The expression "enforceable" has
          been used to cover such decrees or orders also which
D         become enforceable subsequently.

          9. Filing of an appeal would not affect the enforceability of
          the decree, unless the appellate court stays ifs operation.
          But if the appeal results in a decree that would supersede
E         the decree passed by the lower court, it is the appellate
          court decree which becomes enforceable. When the
          appellate order does not amount to a decree there would
          be no supersession and hence the lower court decree
          continues to be enforceable."
F      33. In Ram Bachan Rai (supra), the two-Judge Bench took
  note of the fact that an application under Order IX Rule 13 for
  setting aside the ex parte decree was dismissed which was
  assailed in a miscellaneous appeal and ultimately in a civil
  evision. At no stage, stay was granted by any court. The decree
G olders therein filed an application for execution after 12 y
  ars. Regard being had to the same, it was held that the
  execution proceeding was barred by limitation.
                                                                  .,

          34. In this context, it is fruitful to refer to the pronouncement
H 12. 2000 (8) SCALE 214.
  BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &                    217
           ORS. [DIPAK MISRA, J.]
in Manohar v. Jaipa/sing 13 • In the said case, it has been held     A
as follows:

    "15. The order of purported stay passed by this Court in
    terms of its Order dated 21.3.1988 is also of no assistance
    to the plaintiff decree-holder. The Special Leave Petition       B
    was filed only against the Order dated 1. 7 .1985 refusing
    to review its judgment and decree dated 2.9.1983. The
    stay of operation of the Order dated 1. 7 .1985 for all intent
    and purport was meaningless as the review. petition
    already stood dismissed.
                                                                     c
     16. Fu.rther direction of this Court that computation of
     mesne profit would go on and the same would be
     deposited by the appellant is of no consequence inasmuch
     as by reason thereof neither proceeding was stayed nor
     had the operation of the judgment and decree been               D
     stayed. In fact, it was an order passed in favour of the
     decree holder. The said direction did not come in his way
     to execute the decree for possession."

     35. In the case at hand, the compromise decree had the          E
status of a final decree. The latter suit filed by the appellants
was for partition and declaring the ex parte compromise decree
as null and void. As has already been stated, there was no stay
of the earlier judgment or any proceedings emanating
therefrom. In the absence of any interdiction from any court, the
decree-holder was entitled to execute the decree. It needs no
                                                                     F
special emphasis to state that there was no impediment or
disability in the way of the respondents to execute the decree
but the same was not done. Therefore, the irresistible
conclusion is that the initiation of execution proceedings was
indubitably barred by limitation. Thus analyzed, the reasons         G
ascribed by the learned single Judge are absolutely
unsustainable. The period of limitation stipulated under Article
136 of the Act could not have been condoned as has been so

13. AIR 2008 SC 429.                                                 H
    218      SUPREME COURT REPORTS              [201:2] 2 S.C.R.


A presumed by the learned single Judge. The reliance placed on
  th.e decision in Bharti Devi (supra) is totally misconceived
  inasmuch as in the said case, the execution proceeding was
  initiated for permanent injunction. No exception can be taken
  to the same and, therefore, reliance placed on the said decision
B is misconceived.                                               '

      36, Ex consequenti, the appeal is allowed, the order
  passed by the High Court in Civil Revision is set aside and that
  ofthe executing court is restored. The parties shall bear their
C respective costs.

    D.G.                                         Appeal allowed.