Holding

The limitation period commences only after a final decree is drawn up and engrossed on duly stamped paper; until then there is no executable decree and the executing court cannot receive the preliminary decree.

Summary

The parties obtained a preliminary decree in a partition suit allocating a 1/6th share to the first respondent and a 5/6th share to the appellants. Although the court directed the preparation of a final decree in 1958, the final decree could not be engrossed because the appellants failed to supply non‑judicial stamps. The appellants later filed an application to have the final decree prepared and stamped, which the trial court allowed, but the High Court dismissed on the ground that the limitation period for execution had expired. The Supreme Court held that a decree becomes executable only after a final decree is drawn up and engrossed on duly stamped paper; until such a final decree exists, the executing court cannot receive the preliminary decree. Consequently, the limitation period under Article 182 of the Limitation Act, 1908, begins to run only after the final decree is stamped, not from the date of the court's direction to prepare it. The Court allowed the appeals, set aside the High Court orders, and directed the trial court to pass and stamp the final decree before proceeding with execution.

Issues considered

When does the limitation period for filing an application for execution of a decree begin to run after a preliminary decree has been passed?
Can a preliminary decree be received and executed by the executing court before a final decree is drawn up and engrossed on stamped paper under Order 20 Rule 18(2) of the CPC?

Legislation cited

Bombay Stamp Act, 1958s. Section 2(a), s. Section 34
Code of Civil Procedure, 1908s. Order 20 Rule 18(2), s. Order 20 Rule 7, s. Section 2(2)
Limitation Act, 1908s. Article 182

Subjects

preliminary decreefinal decreelimitation periodexecution of decreeOrder 20 Rule 18stamp dutycivil procedurepartition suitArticle 182CPC

Judgment

T

·A SHANKARBALWANTLOKHANDE
v. ..,..._
CHANDRAKANTSHANKERLOKHANDE

~RCH 20, 1995

B
[K. RAMASWAMY AND B.L. HANSARIA, JJ.)

Code of Civil Procedure Order 20 Rule 18(2}--Limitation Act 1908 Art. r
182-Final decree ordered to be prepared-Whether executing Court.can
'~
receive preliminary decree before final decree made-When decree becomes
c executable-Limitation when starts.
.......~.

Respondent and appellants were entitled to I/6th and 5/6th share
respectively of a certain property by virtue of a preliminary decree of the
trial Court. An order was passed to prepare a final decree on 19.4.58 but
D was. not prepared because of non supply of non-judicial stamps by the
appellants. However the first respondent supplied the stamped papers and
got the final decree engrossed on it by the trial Court. ~ application for
,.,_.,
execution was filed by the appellants on 13.3.68 but was dismissed on
grounds of limitation. On appeal the High Court held that there was no
decree for execution in existence.
,. . E
An application was thereafter filed before the trial Court on 3.2.76
to accept non-judicial stamps and pass a final decree, but was contested
by the respondent as barred by limitation. The trial Court overruled the
objection and allowed the application. On first appeal the Single Judge
F held that it was barred by limitation since the application was not made
within 3 years form the date of direction of the Civil Court. The Division
Bench dismissed the appeal in limine. Hence these appeals.

Allowing the appeals, this Court ~
r
,G HELD: 1. Limitation does not begin to run from the date when the
direction is given to pass the final decree. Mere giving of a direction to
supply stamped paper for passing a final decree does not amount to
\_
passing a final decree. Until a final decree determining the rights of parties
by metes and bounds is drawn up and engrossed on stamped paper by
.H parties, there is no executable decree. [783-C]
776
r

S.B. LOKHANDE v. C.S. LOKHANDE [K. RAMASWAMY, J.) 777

2. The executing Court cannot receive the preliminary decree unless A
the final decree is passed as envisaged under Order 20 Rule 18(2) of the
CPC. After a final decree is passed and a direction is issued to pay
stamped papers for engrossing the final decree thereon and the same is
duly engrossed on stamped papers it becomes executable or becomes an
instrument duly stamped. Thus the condition precedent is to draw up a
final decree and then to engross it on stamped paper of required value.
B
These two acts together constitute a final decree, crystallizing the rights of
"f parties in terms of the preliminary decree. Till then there is no executable
decree as envisaged in Order 20 R 18(2) CPC attrar.~ng the residuary Art.
( 182 of the old Limitation Act. Umitation begins to run only after a final
I
decree is engrossed on stamped papers. (783-E-G] c
---t~

Yeshwant v. Walchan<J, AIR (1951) SC 17, relied on.

Maksudan Pd. v. Lakshmi Dev~ AIR (1983) Pat 105 and Smt. Kotipalli
Mahalakshmamma v. K Ganeshwar Rao, AIR (1960) AP 54, approved.
D
Pandivi Satyananadam v. P.. Namayya, AIR (1938) Mad 307 and
Basamma v. Sivamma, AIR (1963) Mysore 323, disapproved.

Rameshwar Singh v. Homeshwar Singh, AIR (1921) PC 31, referred
to.
E
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2.652-53
of 1977.

From the Judgment and Order dated 7.3.77 & 7.4.77 of the Boiµbay
High Court in F.A NO. 229n6 and L.P.A No. 15of1977.
Fr _c/

\/
.
lants .
V.N. Ganpule, AS. Bhasme and Ms.. Punka Kumar for the Appel-
"' '
Mrs. J.S. Wad and Ms. Usha Reddy for the Respondents.

The .Judgment of the Court was delivered by
G
J K. RAMASWAMY~ J. These appeals by special leave arise from the
judgment of the High Court of Bombay dated April 7, 1977 by which LPA
15m 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 prelimi- H
778 SUPREME COURT REPORTS [1995) 2 S.C.R.

A nary 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,
1'960, 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
B 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, Darlchast y
No. 41/63 was filed by them for execution of the preliminary decree.which
was subsequently dismissed as withdra~. Darlchast No. 70 was filed in ~,
c 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. 538n5 before the trial court to accept the non-judi-
D cial 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. 229n6.. learned single
Judge of the High Court held that the limitation began to run &om the
E date when the direction was given to pass final decree. Since the applica-
tioa 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.
F
The fIUcial 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,
r
'
after hearing counsel at length, we reserve the judgment in the appeal and
independently made detcJled examination. There is divergence of opinion
G in the High Courts on this question.

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 judg-
H ment, he shall sip the decree". Section 2(2) of CPC defines "decree" to
T

S.B. LOKHANDE v. C.S. LOKHANDE [K.'RAMASWAMY, J.] 779

mean "the formal expression of an adjudication which, so far as regards the A
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 pursuant to the preliminary decree, the rights of the parties are B
fully determined and a decree is passed in accordance with such deter-
mination which is final. Both the decrees are in the same suit. Final decree
may be said to become final in two ways:-(1) 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 C
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 ap-
pealability of the decree will, therefore, not affect its character as a final
decree. The final decree merely carries into fulfilment the preliminary
decree.
D
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 E
preliminary decree declaring the rights of the several parties interested in the
property and giving such further dtrections as may be required". (Emphasis
ours) Thus, it could be seen that where the decree relates to any immovable
property and the partition ot separation cannot be conveniently made
without further inquiry, then the court is required to pass a preliminary p
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 co- sharer, the court should not give a decree
only for the plaintiffs share, it should consider shares of all the heirs after G
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 indii::ate that shares of the parties, other than the plain-
, tiff(s), have to be taken into account while passing a preliminary decree.
Therefore, preliminary decree for partition is only a declaration of the H
T

780 SUPREME COURT REPORTS [1995] 2 S.C.R.

A 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.

The preliminary decree, in these appeals, declared that the proper-
B ties belong to the joint family of the palintiffs 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
l/6th share and the appellants have 5/6th share. The former is directed to
C 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 iii paragraph 8 of
D the decree. Para 9 declares certain charges in respect of specified proper-
ties. It would, thus, be 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 affected by the Commissioner to be appointed and as per directions
from the court in that behalf. A preliminary decree in respect of l/6th share
of the first respondent was engrossed on the stamped papers submitted by
E .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?

It is seen that the single Judge of the High Court held that the
F 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 t
execution stood barred. The single Judge concluded thus :-

"I, ·therefore, hold that limitation for executing a final decree in a
G 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 foi:- engrossing
the final decree and when the Court engrosses the final decree on
H the stamp and signs it."
T
l

S.B. LOKHANDE v. C.S. LOKHANDE [K. RAMASWAMY, J.) is1·

Question is whether the aforesaid view is correct? Since the deci;ee A
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 ~ct'),
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 B
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 I provides that "where the decree or order has been
r
I
passed severally in favour of more persons than one, distinguishing portions
of the subject-matter as payable or deliverable to each, the application C
- _,.,_, mentioned in note S of the ariicle shall take effect in favour only of such
I
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 D
would be clear that where decree or order has been passed jointly against
more person 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 E
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 ~
. I
crystallised and no final decree dividing the properties by metes and
bounds was passed nor any application was made to divide the properties
in terms of the shares of the parties declared in the preliminary decree.

- It has been seen that after passing of preliminary decree for partition, G
the decree cannot be made effective without a final decree. The final
...,j
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 H
782 SUPREME COURT REPORTS [1995) 2 S.C.R.

A 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 a~ to entitle
the party to make an application for execution of the final decree.

In Rameshwar Singh-Decree holder v. Homeswar Singh- fudgment-
debtor, AIR (1921) Privy Council 31, the facts, in nutshell, were: There was
B 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 application was made within
limitation, the decree ·became unexecutable, being barred by limitation.
C 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
D counsel 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
E 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 judgment in Maksudan Prasad v. Smt. Lakshmi Dev~ AIR (1983)
Patna 105, Pandivi Satyananadam v. P. Namayya, AIR (1938) Madras 307,
and Basamma v. Shivamma, AIR (1963) Mysore 323.
F \ -
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 preliminary decree. The preliminary decree had only
declared the shares of the parties and properties were liable to be parti- . I
L
tioned in accordance with those shares by a Commissioner to be appointed
G in this behalf. Admittedly, no Commissioner was appointed and no final
decree had been passed relating to all.

In Yashwant's case (supra), the facts were that preliminary decree
for accounting was passed in a suit for rendition of account of partnership.
H There was deficit court fee p,.ayalie. It was contended that until the
S.B. LOKHANDE v. C.S. LOKHANDE [K. RAMASWAMY, J.] 783

payment of deficit court fee was made, right had not been accrued to draw A
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, payment of
the deficit court fee; and payment thereof at a later date would not provide
B
fresh limitation to run from that date.

As to Maksudan's case (supra), we state that it had not been correctly
'"'f 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 to amount to passing a final decree. C
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 D
Article 46 in Schedule-I. 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 E
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, condi-
tion precedent is to draw up a final decree and then to engross it on
F
stamped paper(s) of required value. These two acts together constitute
final decree, crystallizing the rights of the parties in terms of the prelimi-
nary 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 G
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.

Accordingly, the appeals are allowed. The judgments and orders of H
r

784 SUPREME COURT REPORTS [1995) 2 S.C.R.

A the High Court are 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. T~e ,(inal de~ree would then be drawn thereon. The court
B would; thereafter, proceed with the execution of the final decree in accord-
ance with law.

In the circumstances, the parties are directed to bear their own costs
t)ll'oughout.

S.K. Appeals allowed·.