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final decree
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 executable and; whether the execution proceeding was untenable being hit by the law of limitation. = Compromise was acted upon as if it is a final decree – no separate final decree necessary and is a executable decree – as execution of it after 12 years barred by limitation = Bimal Kumar & Another … Appellants Versus Shakuntala Debi & Others = Published in http://judis.nic.in/supremecourt/helddis.aspx
DECREE: Final decree and Preliminary decree – Distinction 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 – The compromise application did not contain any clause … Continue reading
partition suit – final decree suit =Where an application does not invoke the jurisdiction of court to grant any fresh relief based on a new cause of action, but merely reminds or requests the court to do its duty by completing the remaining part of the pending suit, there is no question of any limitation – Such an application is not one to which Limitation Act would apply – As declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit – Suit continues to be pending until partition, that is, division by metes and bounds, takes place by passing a final decree – An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree is neither an application for execution (falling under Article 136 of Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act) – Code does not contemplate filing of an application for final decree – Therefore, when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing dates for further proceedings till a final decree is passed -It is the duty and function of the court which in the normal course has to be performed by the court itself as a continuation of the preliminary decree – Performance of such function does not require a reminder or nudge from the litigant – The mindset should be to expedite the process of dispute resolution – The application filed by plaintiff for drawing up of a final decree was rightly held to be not subject to any period of limitation – Court concerned would expedite the final decree proceedings – Limitation. Lalta Prasad v. Brahma Din AIR 1929 Oudh 456; Ramabai Govind v. Anant Daji AIR 1945 Bom. 338; Abdul Kareem Sab v. Gowlivada S. Silar Saheb AIR 1957 AP 40; A. Manjundappa v. Sonnappa & Ors. AIR 1965 Kar. 73; Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors. AIR 1983 Orissa 121; Laxmi v. A.Sankappa Alwa AIR 1989 Ker. 289; Phoolchand vs. Gopal Lal AIR 1967 SC 1470; Hasham Abbas Sayyad v. Usman Abbas Sayyad & Ors. 2007 (2) SCC 355; and Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare 2008 (8) SCC 198, relied on HELD: There is a fundamental difference between mortgage suits and partition suits – In a preliminary decree in a mortgage suit (whether a decree for foreclosure under r.2 or a decree for sale under r.4 of O 34 CPC), the amount due is determined and declared and the time within which the amount has to be paid is also fixed and the consequence of non- payment within the time stipulated is also specified – A preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in the event of non-payment of the amount – When the amount is not paid, plaintiff gets a right to seek a final decree for foreclosure or for sale – On the other hand, in a partition suit the preliminary decree only decides a part of the suit and, therefore, an application for passing a final decree is only an application in a pending suit, seeking further progress – In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court – In fact several applications for final decree are permissible in a partition suit – The application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds – Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage suit – Consequently, an application for a final decree in a mortgage suit is different from an application for final decree in a partition suit. HELD: `Partition’ is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees – The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty – A partition of a property can be only among those having a share or interest in it – A person who does not have a share in such property cannot obviously be a party to partition – `Separation of share’ is a species of `partition’ – When all co-owners get separated, it is a partition – Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds – In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff’s share in the suit properties, but also division of his share by metes and bounds – This involves three issues (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner the property/properties should be divided by metes and bounds. HELD: Cases have been found where a suit is decreed or a preliminary decree is granted within a year or two and the final decree proceeding and execution takes decades for completion – This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system – Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits – A conceptual change regarding civil litigation, is required so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant – It is hoped that the Law Commission and Parliament will bestow their attention on this issue and make appropriate recommendations/amendments so that the suit will be a continuous process from the stage of its initiation to the stage of securing actual relief – The present system involving a proceeding for declaration of the right, a separate proceeding for quantification or ascertainment of relief, and another separate proceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements – The Code of Civil Procedure should provide for a continuous and seamless process from the stage of filing of suit to the stage of getting relief – In so far final decree proceedings are concerned, there is no reason for even legislative intervention – As the provisions of the Code stand as on date, initiation of final decree proceedings does not depend upon an application for final decree for initiation (unless the local amendments require the same) – Practice and Procedure. Case Law Reference: AIR 1929 Oudh 456 relied on para 8 AIR 1945 Bom. 338 relied on para 8 AIR 1957 AP 40 relied on para 8 AIR 1965 Kar. 73 relied on para 8 AIR 1983 Orissa 121 relied on para 8 AIR 1989 Ker. 289 relied on para 8 AIR 1967 SC 1470 relied on para 8 2007 (2) SCC 355 relied on para 8 2008 (8) SCC 198 relied on para 8 CIVIL APPELLATE JURISDICTION : SLP (Civil) No. 17932/2009. From the Judgment and Order dated 15.1.2009 of the High Court of Judicature at Patna in C.R. No. 2216/2008. S.B. Sanyal and Subhro Sanyal for the Petitioner. Act: Code of Civil Procedure, 1908: ss.2(20) and 54, O. 20 r.18, O. 26 r.13 – Partition suit – Preliminary decree passed – Application for final decree – Resisted on the ground of limitation – DECREE – Preliminary decree and final decree – Concept of, in the context of partition suits and mortgage suits – SUIT: Suit for partition – Partition – Concept of – LEGISLATION: Suit – Filing of suit and securing relief to litigant – Proceedings in between – Need for legislation to avoid multiplicity of proceedings –
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION [C] NO.17932 OF 2009 Shub Karan Bubna @ Shub Karan Prasad Bubna … Petitioner Vs. Sita Saran Bubna & Ors. … Respondents O R D E R R. V. RAVEENDRAN, J. The first respondent and his mother filed a suit for partition against … Continue reading
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