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Duty Of The Court To Make Sure That Final Decree Proceedings Commence Without Any Delay After The Issuance Of The Preliminary Decree In Partition Suits: Shub Karan Bubna Vs Sita Saran Bubna & Ors

Arundhathi ,
  13 September 2022       Share Bookmark

Court :
Supreme Court of India
Brief :

Citation :
Special Leave Petition [C] No.17932 OF 2009

Case Title:
Shub Karan Bubna Vs Sita Saran Bubna & Ors

Date of Order:
August 21, 2009

Bench:
R.V. Raveendran
B. Sudershan Reddy

Parties:
Petitioners- Shub Karan Bubna
Respondents- Sita Saran Bubna &Ors

SUBJECT

This was a suit of partition filed by the respondent and his mother against the petitioner and two others. A preliminary decree ordering partition of one-third shares of the respondents had already been drawn by the First Additional Judge of Muzaffarnagar along with a final decree for actual division of the plots under a Commissioner appointed for the same purpose. The respondent filed an application for drawing up a final decree in 1987 and in 1991 the petitioner filed an application to drop the proceedings for this as it was barred by limitation, which was dismissed by the trial court. This order was challenged by the petitioner citing that under the law of limitation, the application does not stand as it has been three years since the preliminary decree was issued by the Court. This revision petition which was filed before the High Court was also dismissed. Thus this special leave petition was filed before the Supreme Court seeking leave to appeal against the High Court decision that dismissed the revision petition. It was found that the application filed by the respondent for drawing up a final decree stands valid and it does not fall under the scope of the limitation provisions. The Court dismissed this special leave petition as having no merit, along with a request to carry out the final decree proceedings.

IMPORTANT PROVISIONS

  • Order 20 Rule 18, Code of Civil Procedure, 1908-This rule states that in a partition suit, at the stage of issuance of preliminary decree, the quantum of share and the items of property that are to be partitioned are ascertained along with the rights of the parties involved in the property. In this decree, the Collector is to appoint a gazetted officer subordinate to him to execute the order of the Court.
  • Articles 136 and 137, Limitations Act, 1963- Limitation period is the period within which legal actions may be initiated to advance any suit or seek remedy from the court. Any such action taken after this period would be barred by the provisions of this Act. Article 136 states that for the execution of any decree or order passed by any civil court, the limitation period would be twelve years from the date on which the order pertaining to it was issued. Article 137 states that for any application where a limitation period has not been prescribed in the Division under this Act, it would be three years.

OVERVIEW

  • A suit for partition was filed against the petitioner and two others by the respondent and his mother, before the First Additional Judge of Muzaffarnagar, in the year 1960. The property was three agricultural plots and some movable properties too. Partition and separate possession of one-third share of the scheduled property and for all concerned amounts to be rendered and settled were demanded. An order in favour of them was issued on 25.2.1964 ordering a preliminary decree of partition to be drawn and for a final decree to be drawn under an appointed Commissioner who will supervise actual partition according to metes and bounds of the concerned property.
  • The aggrieved petitioner filed an appeal before the Patna High Court which was dismissed.
  • The first respondent filed an application on 1.5.1987 for drawing up the final decree, and the petitioner filed an application on 15.4.1991 asking to drop all procedures towards it. He was of the contention that these proceedings were barred by limitation.
  • The Court dismissed this appeal stating that the rights and shares of the respondents had already been determined by a preliminary decree and thus limitation does not bar the drawing of a final decree based on this. It can only be considered as an application made in a pending suit.
  • The petitioner filed a revision petition before the High Court challenging this order, which was also dismissed on 15.1.2009. Thus this special leave petition was filed before the Supreme Court against the decision of the High Court.

ISSUESRAISED

  • Whether the provisions of the Limitation Act, 1963 are inapplicable to an application for drawing up the final decree in a partition suit.

ARGUMENTS ADVANCED BY THE PETITIONER

  • When a preliminary decree is passed in a partition suit from then on the plaintiff has the right to apply for a final decree to be drawn for further proceedings towards the partition of the suit property. However, all proceedings regarding this are governed by the law of limitation. Provisions for this come under the residuary Article 137 of the Limitation Act, 1963. From the date of the issuance of the preliminary decree, the limitation period of three years begins. Any application filed after this time period would be barred by limitation.

JUDGEMENT ANALYSIS

  • Analysing the issue in this case, the Court went into detail regarding the definition of Partition and the conditions pertaining to it. The first issue to be determined in a suit of partition was the right of the plaintiff on the property under question and the entitlement to its division and possession. It is on analysing these aspects that the first stage of a suit of partition is carried out, which is a judicial function, after which the preliminary decree is drawn. The following division according to the metes and bounds of the property, its physical inspection, measurement, calculations, and such proceedings are administrative actions that constitute the subject matter of the final decree. This is referred to the Collector who appoints a gazetted subordinate for the same.
  • It was further noted that under the Limitations ct, the term ‘period of limitations’ means that every suit, or appeal instituted or preferred after the said period of time shall be dismissed. These time limits are provided under the Third Division of the Schedule of this Act. However, it does not contain any Article that prescribes the time limit for applications for drawing up a final decree.
  • Article 137 provides that for any application for which any time limit has not been prescribed in that division, it shall be three years from the time the plaintiff is said to have the right to apply.In this case which is from the date when the preliminary decree was issued. However, this is not applicable to applications that do not seek any fresh relief from the Court based on a new cause of action. This can only be considered as a request reminding the Court to fulfill the remaining part of the pending suit.
  • In partition suits of estates that pay revenue to the government, in the usual course, the Court is required to issue only one decree declaring the rights of the parties involved in the partition of the property and direct the Collector to proceed towards actual partition and deliver the respective portions of the property to different parties. After this stage, the Court has no reason to interfere in the matter anymore unless there are any complaints by a third party. In the case of immovable properties if the Court can itself carry out division and partition without assistance from an appointed Commissioner, or if the parties agree upon the manner of division, a single decree is passed which comprises both the preliminary and final decrees. Thus, the mere issuance of a preliminary decree does not dispose of the suit. It is only the first stage in a suit of partition. Until the actual division according to metes and bounds of the property, the suit stays pending.
  • The cases cited by the petitioner were not found relevant to this case by the Court, as all three of those were cases of mortgage which have different provisions from that of a partition suit.
  • In furtherance, the Court also made a suggestion for debate and legislative action regarding the ‘pause’ that usually takes place between a preliminary decree and a final decree. The Civil Procedure Code, 1908 also provides for this ‘pause’ between a decree and its execution. This is provided so that the defendant may voluntarily comply with the preliminary decree. However, in reality, this does not take place without the pursuance of the execution of the decree. Thus it becomes necessary to go through the procedures towards drawing up the final decree which requires the filing of applications, or levy of execution in money suits. A litigant who approaches the Court would want immediate relief on his case, rather than first engaging a lawyer to obtain the preliminary decree, and again do the same to obtain the final decree for execution of the same. It is only an obvious question as to why should the litigant remind the Court again for issuing the final decree, and why should it not be a continuous process by which the Court can fix a date by which a Commissioner should be appointed to execute the decree.
  • The division of such suits into different parts such as the preliminary, final decrees, and further execution proceedings, most judges seem to have a belief that only the part of issuing the preliminary decree is a judicial function. Thus the consequent decree and its execution are not given enough attention. The Court observed that the priority to be made is not just of the early disposal of cases, but also that of ensuring relief to the litigant. These trends lead to considerable delay and loss of credibility in the civil justice system.
  • The Court went into detail on why a discussion and legislative action on this is a necessary action to be taken. It was pointed out that in the present system, even if he wins the suit, the plaintiff has no guarantee that the fruits of the decree would reach him. In order to meaningfully implement the provisions of the Code, a conceptual change in the process of civil litigation had to happen. The Court made a suggestion that the Law Commission and Parliament see that such suits are to be a continuous process and make appropriate recommendations and amendments as to it.

CONCLUSION

The Court stated that it is the duty of the Court to make sure that final decree proceedings commence without any delay after the issuance of the preliminary decree in partition suits. The litigant should not have to remind the Court to perform this function, as this also comes under the judicial purview. Thus the application filed by the respondents, in this case, is not subject to the law of limitation, as it was only an application made on a pending suit. The special leave petition was suspended and final decree proceedings were ordered to be executed accordingly.

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