VENUversusPONNUSAMY REDDIAR (DEAD) THR. LRS. & ANR.

                        [2017] 3 S.C.R. 933



                              VENU                                   A
                                 v.
     PONNuSAMY REDDIAR (DEAD) THR. LRS. & ANR.
                  (Civil Appeal No. 4187 of 2-008)
                         APRIL 27, 2017                              B

          [ARUN MISHRA AND AMITAVA ROY, JJ.)
       Partition~- Preliminary decree for partition - Application for
execution of preliminary decree moved thirty years after the
preliminary decree - Application in the shape of seeking appointment C
of court commissioner so as to carry out the preliminary decree -
Held: A preliminary decree for partition crystallizes the rights of
parties for seeking partition to the extent declared, the equities
remain to be worked out in f111al decree proceedings - Till partition
is carried out and final decree is passed, there is no question of any
limitatioa running against right to claim partition as per preliminary D
decree - Even when application is filed seeking appointment of
Commissioner, no limitation is prescribed for this purpose, as such
it would not be barred by limitation, !is continues till preliminary
decree culminates into final decree - In the ii1sta11t case, since the
parties did not work _out their rights by mutual agreement, final E
decree has to be' drawn in accordance with law - Limitation Act,
 1963' - Decree - Execution of
      Bhusan Chandra Monda! v. Chhabimuni Dasi AIR 1948
      Calcutta 363; Laxmi & Ors. v. A. Sankappa Alwa &
      Ors. AIR 1989 Kerala 289; Naresh Kumar & Anr. v.
                                                                      F
      Smt. Kai/ash Devi & Ors. AIR 1999 Punjab and
      H!lryana 102; Ramanathan Chetty v. Alagappa Chetty
      AIR 1930 Mad .. 528; Faquir Chand v. Mohammad
      Akbar Khan AIR 1933 Peshawar 101 (2); Sudarsan
      Panda v. Laxmidhar Panda AIR 1983 Orissa 121;
      Varatharajulu Reddiar v. Venkatakrishna Reddiar &               G
      Ors. 1967 (2) Madras Law Journal 342 - affirmed.
                        Case Law Reference
 AIR 1948 Calcutta 363                  affirmed       Paras

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                                 933
934             SUPREME COURT REPORTS                          [2017] 3 S.C.R.


A AIR 1989 Kerala 289                          affirmed           Para6
      AIR 1999 Punjab and Haryana 102 affirmed                    Para 7
      AIR 1930 Mad. 528.                        affirmed          Para 7
      AIR 1933 Peshawar 101 (2)                 affirmed         Para 7
B AKR 1983 Orissa 121                           affirmed         Para 7
      1967 (2) Madras Law Journal 342           affirmed         Para 8
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4187
      of2008.
C           From the Judgment and Order dated 03.12.2007 of the High Comt
      of Judicature at Madras in C.R.P.(N.P.D.) No. 917 of 2003.
           V. Prabhakar, Ms. Jyoti Prashar, N. J. Ram Chandar, Mrs .. Revathy
      Raghavan, Ad vs. for the Appellant.
        V. Ramasubramanian, A. Arolkia Raj, I. Calvin Jones, Advs. for
D the Respondents.
            The following Order of the Court was delivered:
                                    ORDER
         1. Only question raised in the present appeal is with respect to
E the limitation for execution of preliminary decree for partition. In the
  instant case, the application for execution of the decree was filed after
  thirty years of the preliminary decree. That too in the shape for the
  appointment of an court Commissioner so as to carry out the preliminary
  decree which has been passed on 23.11.1959. The application for the
F execution of the decree was filed on 3.10.1989 i.e. after thirty years.
            2. Learned counsel appearing on the appellant has submitted that
      since the application had been filed for appointment of court
      commissioner, it ought to be governed by provisions ofArticle 1}7 of the
      LimitationAct, 1963.
G             3. On the other hand, learned counsel appearing on behalf of the
      decree holder has urged that in substance an application has been filed
      for final decree proceedings and the cost of the final proceedings is paid
      then the preliminary decree is executed, thus application for execution
      of preliminary decree for partition could not be said to be barred by
      limitation.
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     VEND v. PONNUSAMY REDDIAR (DEAD) THR. LRS.                             935


       4. ln our opinion a preliminary decree for partition crystallizts the A
rights of parties for serking partition to the extent declared, the equitie&
remain to be worked out in final decree proceedings. Till partition is
carried out and final decree is passed, there is no. question of any limitation
running against right to claim partition as per preliminary decree. Even
when application is filed seeking appointment of Commissioner, no B
limitation is prescribed for this purpose, as such, it would not be barred
by limitation, !is continues till preliminary decree cnlminates in.to final
decree.
       5. The matter is no more res integra. The Division Bench of the.
High Court of Calcutta in In Bhusan Chandra Monda/ vs. Chhabimoni
Dasi,[AIR 1948 CALCUTTA 363] considered the question when a C
preliminary decree was passed in a suit for partition in courts, the r.ourt
consider the applicability of Article 181 of the Limitation Act, 1908 (in
short 'the old Act') the court has laid down thus :
      "(6) Article 181 is the residuary Article relating to applications. In
      a mortgage suit it has been held that the application for a final D
    , decree has to be made within 3 years by reason of Article
      181,Limitation Act. But those decisions are not helpful because
      0.34 R.4 Civil P.C.expressly requires the mortageec to make an
      application for a final decree, either for foreclosure or for sale. In.
      a suit for partition and/or accounts a party need not make an E
      application for making the decree final. After the preliminary
      decree is in such a suit has been passed it is the usual practice for
      the plaintiff to make an application for the appointment of the
      Commissioner but there were no legal bar in the court appointing
      the commissioner suo motu and asking the plaintiff to deposit the
      commissioner's fee in Court. Ifhe does not deposit the fees any F
      other party to the suit can do so and take upon himself the carriage
      of the proceedings if the plaintiff and none of the other parties
      make the deposit the fact that the court would not be able to
      dismiss the suit is, however, another matter.
       (7) We therefore do not see our way to accept the petitioner's G
       contentions on this point also."                         '
       6. Similar is the view adopted by a Single judge of the High Court
 of Kerala in Laxmi & Ors. vs. A. Sanka(![Ja Alwa & Ors. [AIR 1989
 KERALA 289] the logic given by the High Court of Kerala that the
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936            SUPREME COURT REPORTS                           [2017] 3 S.C.R.


A preliminary decree does not completely dispose of the suit. The suit
  continues till the final decree is passed. Suit is pending till the passing of
  the final decree. There is no necessity of filing an application to apply
  for the: final decree proceedings by litigants, then there is an obligation
  on the court for drawing up a final decree. The court had held thus :
B         "15 .I turn to consider the question of obligation of the Court and
          the parties after a preliminary decree is given in a partition suit. I
          do not propose to discuss that matter elaborately. In my view a
          preliminary decree conclusively determines the rights and liabilities
          of the parties with regard to all or some of the matters in
          controversy in the suit although it does not completely dispose of
c         the suit. Further proceedings await the suit to work out and adjust
          the rights of the parties. The Court cannot dismiss a suit for default
          when once a preliminary decree is passed in a partition suit. The
          parties to the suit have acquired rights or incurred liabilities under
          the decree. They are final, unless or until the decree is varied or
D         set aside. The law being so, if the plaintiff does not take any steps
          after a preliminary decree is passed, the. Court should adjourn the
          proceedings sine die with liberty to the parties concerned to end
          the torpor and suspended animation of the suit by activising it by
          taking appropriate proceedings. In Thomas v. Bhavani Amma,
           1969 Ker LT 729, Krishna Iyer, J. observed :
E         "It is correct law that in a suit for partition, after the passing of a
          preliminary decree it is the duty of the Court to pass a final decree
          and what is called an application for final decree is but a reminder
          to the Court ofits duty. If so, it is the Court's duty to give notice to
          the parties."
F         19.No rule provides forthe filing ofan application by the party for
          passing a final decree. The preliminary decree will not dispose of
          the suit. The suit continues. The position being so, it is more
          appropriate forthe Court to adjourn the case sine die. It is difficult
          for me to say that there is an obligation on the part of the Court to
          "pass the final decree after necessary enquiries" as observed by
G
          Paripoornan, J. in 1985 Ker LT 940 (Sreedevi Amma v. Nani
          Amma).
          20. I am of the opinion that an application for drawing up a final
          decree in a partition suit is in no way an application contemplated
          under the Limitation Act. It is a reminder to the Court that
H        something which the Court is obliged to do has not been done and
     VENU v. PONNUSAMY REDDIAR (DEAD) THR. LRS.                                937


      so, such an application, is not governed by any provision of the A
      Limitation Act. When once the rights of the parties have been
      finally determined in a preliminary decree, an application by a
      party thereto or the legal representatives, for effecting the actual
      partition in accordance with the directions contained in the
      preliminary decree can never be construed to be an application B
      within the meaning of the Limitation Act. It shall be taken to be an
      application in a pending suit and therefore the question oflimitation
      does not arise.
      7. Similar is the view taken by the Single Bench of High Court of
      Punjab & Haryana in Naresh Kumar & Anr. vs. Smt. Kai/ash
      Devi & Ors. [AIR 1999 Punjab and Haryana 102] in which                   C
      reliance has been placed upon the decision of High Court of
      Madras in Ramanathan Chettv v. Alagappa Che tty [AIR 1930
      M;id. 528] in which it was held that until final decree is passed in
       a partition suit, limitation will not come into play because the suit
       continues, till final decree is passed. Reliance is also placed on a    D
       decision of High Court of Peshawar in Faqir Chand v.
       Mohammad Akbar Khan [AIR 1933Peshawar101(2)], in which
       it has been observed that there is no obligation of a litigant to
       apply for final decree proceedings. As such there is no question
       of application of the limitation. Another decision of the High Court
       of Orissa had been referred in Sudarsan Panda vs. Laxmidhar             E
       Panda [AIR 1983 Orissa 121] in which also similar view had
       been taken.
       8. In the instant case, the other ground which was taken by the
appellant with respect to the preliminary decree being worked out by
way of compromise. However, the factum of compromises has not                  F
been found to be established. Thus there is no satisfaction oi the
preliminary decree which had been passed in the instant case. The
decision in Varatharajulu Reddiar vs. Venkatakrishna Reddiar &
Ors. [ 1967 (2) Madras Law Journal 342] is pertinent in this regard, in
which it has been observed that in case parties had affected partition by
metes and bounds as per the preliminary decree, it would not be necessary       G
to undertake the final decree proceedings but in the instant case, it has
not been found to be established that parties have worked out their r;ghts
by mutual agreement. Thus the final decree has to be drawn in
accordance with law. We appreciate the fairness with which the case
has been argued by the learned counsel appearing for the appellant.             iI
~38              SUPREME COURT REPORTS                       (2017] 3 S.C.R.


A           9. Thus we find no merit in this appeal which is hereby dismissed.
      No order as to costs.


      Devika Gujral                                             Appeal dismissed.