http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (civil)  4174 of 2008

PETITIONER: BIKOBA DEORA GAIKWAD & ORS

RESPONDENT: HIRABAI MARUTIRAO GHORGARE & ORS.

DATE OF JUDGMENT: 27/05/2008

BENCH: S.B. Sinha & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 6692 of 2007) REPORTABLE

S.B. Sinha, J.

1.      Leave granted. 2.      Whether an application for initiating a final decree proceedings in  terms of Section 54 of the Code of Civil Procedure, 1908 (for short, \023the  Code\024) would be governed by any provision contained in the Schedule  appended to the Limitation Act, 1963 is the question involved in this  appeal which arises out of a judgment and order dated 12.2.2007 passed  by the High Court of Judicature at Bombay in Writ Petition No. 7382 of  2005.  3.      A suit for partition was filed by the respondents herein claiming  1/3rd share in the joint family property. The said suit was registered as  Regular Civil Suit No. 145 of 1969.  A decree was passed therein on or  about 27.6.1975, the relevant portion whereof reads as under: \023It is hereby declared that Plaintiff, Defendant No. 1  and 2 each have 1/3 share in the suit property  described in the schedule 7 to the plaint.  Plaintiff do  recover separate possession of the land excluding the  lands which are in the possession of Defendant No. 7  and of the house property.  The partition of the land  shall be effected by the Collector in the execution  proceedings, under Section 54 C.P.C.  Partition of  the house property shall effect by the Commissioner  to be appointed in the execution proceedings.  The  suit against Defendant No. 7 is dismissed with costs.   Other parties should bear their own costs.\024  

       Indisputably, the learned trial judge did not send the decree to the  District Collector for partition in terms of Section 54 of the Code of Civil  Procedure.  An appeal preferred thereagainst by the appellants was  dismissed for default on or about 7.9.1978.   4.      An application for sending the said decree to the Collector was  filed before the Civil Judge Junior Division, Indapur on or about  19.12.2002, which was marked as Regular Darkhast No. 34 of 2002.   Appellants 2 and 3 filed applications for dismissal thereof, inter alia, on  the premise that the same was barred by limitation.       The said objections filed by the appellants were rejected.  A writ  petition preferred thereagainst was also rejected by the Bombay High  Court.  Another application was filed in March 2005 by the appellants  herein in terms of Section 54 of the Code whereto also an objection was  filed.  The said objection has also been dismissed.  A writ petition filed  thereagainst has been dismissed by the High Court by reason of the  impugned judgment.  5.      Mr. R. Sundaravardan, learned Senior Counsel appearing on behalf  of the appellants submits:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

(i)     The decree dated 27.6.1975 is not a preliminary decree but  in effect and substance is really a final decree and/or both  and in that view of the matter the application for partition  must be held to be in the nature of an execution petition.   (ii)    In any event, the said petition having been filed after a  period of 17 years was barred under Articles 136 and 137 of  the Limitation Act, 1963 6.      Mr. Vinay Navare, learned counsel appearing on behalf of the  respondents, on the other hand, would support the impugned judgment.  7.      By the judgment and order dated 27.6.1975 passed by the Civil  Judge, Junior Division, Indapur on the basis whereof the decree was  prepared, 1/3rd share of the plaintiff as well as Defendant Nos. 1 and 2  were declared.  In terms of the said decree, the plaintiff was granted  liberty to recover separate possession of the land excluding the lands  which were in the possession of Defendant No. 7 and of the suit property.   It was directed that the partition of the land shall be effected by the  Collector in the execution proceedings in terms of Section 54 of the  Code.  However, as regards partition of the house property, the same was  to be effected by a Commissioner to be appointed in the execution  proceedings.  A bare perusal of the said judgment clearly shows that the  decree passed therein was a preliminary decree and not a final decree. 8.      In terms of that said decree, thus, in respect of agricultural land and  as also the house property, the plaintiff respondent was entitled to file  applications in terms of under Section 54 of the Code as also Order XXI  thereof, respectively.       The terms \021execution proceedings\022 appear to have been  inadvertently used in the operative portion of the judgment.  The same, in  our opinion, must be ignored.  The decree dated 27.6.1975 does not show  that a final decree has been passed.   9.      \021Decree\022 as defined in Section 2(2) of the Code reads as under: \023decree\024 means the formal expression of an  adjudication which, so far as regards the 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.  It shall be deemed to include the rejection of  a plaint and the determination of any question within  Section 144, but shall not include\027 (a)     any adjudication from which an appeal  lies as an appeal from an order, or (b)     any order of dismissal for default. Explanation.\027A decree is preliminary when further  proceedings have to be taken before the suit can be  completely disposed of.  It is final when such  adjudication completely disposes of the suit.  It may  be partly preliminary and partly final.\024                  A decree therefore may denote final adjudication between the  parties and against which an appeal lies, but only when a suit is  completely disposed of, thereby a final decree would come into being.       There cannot be any doubt whatsoever that a decree may be partly  preliminary and partly final.  It has not been contended that the parties  have partitioned the joint properties by metes and bounds and they are in  separate possession of the lands allotted to them.        Section 54 of the Code in effect and substance confers a duty upon  the Court.  The said provision must be read in the context of the Order  XXVI Rule 13 of the Code and/or Section 51, Order XXI Rule 11  thereof.  It is not in dispute that in the State of Maharashtra the practice to  get the properties partitioned by a District Collector still continues.    10.     Section 54 only provides for a ministerial functions of a court.  It  cannot be termed to be an execution proceeding. 11.     It is now well settled that for the purposes of construing the nature  of the decree one has to look to the terms thereof rather than speculate  upon the Court\022s intentions.  {See Ramanathan Chetty v. Alagappa  Chetty & ors. [I.L.R 53 Madras 378]}

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

12.     A bare perusal of Section 54 read with Order XX Rule 18 of the  Code leaves no manner of doubt that the application filed before the  Court to send decree and papers to Collector to carry out partition was not  and could not have been an application in execution.       If it was not an application for execution, the question of the  application of the provisions of the Limitation Act would not apply.        Reliance has been placed by Mr. Sundaravardan  on Venkata  Reddy & ors. v. Pethi Reddy [AIR 1963 SC 992].  Therein this Court was  concerned with the meaning of the words \021final decision\022 vis-‘-vis  \021preliminary decree for partition\022 and in that factual backdrop, it was  opined:  \023It is not clear from the judgment what the  contingencies referred to by the High Court are in  which a preliminary decree can be modified or  amended unless what the learned judges meant was  modified or amended in appeal or in review or in  revision or in exceptional circumstances by resorting  to the powers conferred by Ss. 151 and 152 of the  Code of Civil Procedure.  If that is what the High  Court meant then every decree passed by a Court  including decrees passed in cases which do not  contemplate making of a preliminary decree are liable  to be \023modified and amended\024. Therefore, if the  reason given by the High Court is accepted it would  mean that no finality attaches to decree at all.  That is  not the law.  A decision is said to be final when, so far  as the Court rendering it is concerned, it is unalterable  except by resort to such provisions of the Code of  Civil Procedure as permit its reversal, modification or  amendment.  Similarly, a final decision would mean a  decision which would operate as res judicata between  the parties if it is not sought to be modified or  reversed by preferring an appeal or a revision or a  review application as is permitted by the Code.  A  preliminary decree passed, whether it is in a mortgage  suit or a partition suit, is not a tentative decree but  must, in so far as the matters dealt with by it are  concerned, be regarded as conclusive.  No doubt, in  suits which contemplate the making of two decrees a  preliminary decree and a final decree \026 the decree  which would be executable would be the final decree.   But the finality of a decree or a decision does not  necessarily depend upon its being executable.  The  legislature in its wisdom has thought that suits of  certain types should be decided in stages and though  the suit in such cases can be regarded as fully and  completely decided only after a final decree is made  the decision of the court arrived at the earlier stage  also has a finality attached to it.  It would be relevant  to refer to S. 97 of the Code of Civil Procedure which  provides that where a party aggrieved by a preliminary  decree does not appeal from it, he is precluded from  disputing its correctness in any appeal which may be  preferred from the final decree.  This provision thus  clearly indicates that as to the matters covered by it, a  preliminary decree is regarded as embodying the final  decision of the court passing that decree.  

13.     The distinction between \021a final decree\022 and \021finality of a decree\022 is  obvious enough to merit a detailed discussion.  A decree whether  preliminary or final is binding on the parties but the same does not mean  that all decrees would be final decrees.        Section 2(2) of the Code clearly shows as to the nature of the  decrees that the court may pass.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

14.     It is in the aforementioned context, the applicability of the  provisions of Articles 136 and 137 of the Limitation Act may be noticed,  which read as under:         Description of application             Period of              Time from which period                                                 Limitation         begins to run  136.  For the execution of any decree  (other than a decree granting a  mandatory injunction) or order  of any civil court. Twelve years [When] the decree or order  becomes enforceable or where  the decree or any subsequent  order directs any payment of  money or the delivery of any  property to be made at a  certain date or at recurring  periods, when default in  making the payment or  delivery in respect of which  execution is sought, takes  place: Provided that an application for  the enforcement or execution  of a decree granting a  perpetual injunction shall not  be subject to any period of  limitation. PART II--OTHER APPLICATIONS 137. Any other application for which  no period of limitation js  provided elsewhere in this  division. Three years When the right to apply  accrues.

       Article 136 would apply when an application for execution of any  decree (other than a decree granting a mandatory injunction) or order of  any civil court is to be filed.  An application for taking steps towards  passing a final decree is not an execution application.  The said provision,  therefore, cannot have any application in respect thereof.           Article 137 is a residuary provision which applies when no period  of limitation is provided elsewhere in the Division.  An application  asking the court to perform its duty in terms of Section 54 of the Code  can be filed at any point of time in a case where a right to apply accrues  in a decree holder.  Therefore, no period of limitation is to be prescribed  as there is none.        This aspect of the matter has been considered in Shankar Balwant  Lokhande (Dead) by LRs. v. Chandrakant Shankar Lokhande & Anr.  (1995) 3 SCC 413 wherein it has been held: \0238.  It has been seen that after passing of  preliminary decree for partition, the decree cannot be  made effective without a final decree. The final 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

determining the rights of the parties with 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 as to entitle the party to make an  application for execution of the final decree. 10.     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 the partitioned in accordance with those  shares by a Commissioner to be appointed in this  behalf.  Admittedly, no Commissioner was appointed  and no final decree had been passed relating to all.\024

       Recently, albeit on a different factual backdrop, this Court in  Hasham Abbas Sayyad v. Usman Abbas Sayyad and ors. (2007) 2 SCC  355 opined: \0239.  A final decree proceeding may be initiated at  any point of time.  No limitation is provided therefor.   However, what can be executed is a final decree, and  not a preliminary decree, unless and until final decree  is a part of the preliminary decree.\024

       For the reasons aforementioned, Articles 136 and 137 of the  Limitation Act, 1963 will have no application.  Even otherwise, the  contention of the appellants is wholly unsustainable.  Such a contention  had been raised even in the earlier objections.  They were rejected.  The  appeals preferred thereagainst have also been dismissed. In that view of  the matter, the appellants could not have agitated the same issue by filing  another objection.   15.     For the reasons aforementioned, there is no merit in this appeal,  which is dismissed accordingly with costs.  Counsel\022s fee assessed at  Rs.25,000/-.