Reportable 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  

petitioner  and  two  others  in  the  year  1960  in  the  court  of  the  First  

Additional Judge, Muzaffarnagar, for partition and separate possession of  

their one-third share in the plaint schedule properties and for rendition of  

accounts. The suit was in respect of three non-agricultural plots and some  

movables.  After contest  the suit  was decreed on 25.2.1964 directing a  

preliminary decree for partition be drawn in regard to the one-third share  

of the plaintiffs in the said plots and a final decree be drawn up through  

appointment of a Commissioner for actual division of the plots by metes  

and bounds.

2. Feeling aggrieved the petitioner (and others) filed an appeal before  

the  Patna  High  Court  which  was  dismissed  on  29.3.1974.  The  first  

respondent filed an application on 1.5.1987 for drawing up a final decree.  

The petitioner filed an application on 15.4.1991 to drop the final decree  

proceedings  as  it  was  barred  by  limitation.  The  said  application  was  

dismissed  by  the  trial  court  holding that  once  the  rights/shares  of  the  

plaintiff had been finally determined by a preliminary decree, there is no  

limitation for an application for affecting the actual partition/division in  

accordance with the preliminary decree, as it should be considered to be  

an application made in a pending suit. The said order was challenged by  

the  petitioner  in  a  revision  petition which  was dismissed  by  the  High  

Court order dated 15.1.2009. The petitioner has filed this special leave  

petition  seeking leave  to  appeal  against  the  said  decision  of  the  High  

Court.  

3. The appellant contends that when a preliminary decree is passed in  

a partition suit, a right enures to the plaintiff to apply for a final decree for  

division  of  the  suit  property  by  metes  and  bounds;  that  whenever  an  

application  is  made  to  enforce  a  right  or  seeking  any  relief,  such  

application is governed by the law of limitation; that an application  for  

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drawing up a final decree would be governed by the residuary Article 137  

of  Limitation  Act,  1963  (‘Act’  for  short)  which  provides  a  period  of  

limitation of three years; that as such right to apply accrues on the date of  

the preliminary decree, any application filed beyond three years from the  

date of preliminary decree (that is 12.3.1964) or at all events beyond three  

years from the date when the High Court dismissed the defendant's appeal  

(that is 29.3.1974) would be barred by limitation. Reliance was placed by  

the petitioner on the decision of this Court in Sital Parshad v. Kishori Lal  

[AIR 1967 SC 1236], the decision of the Privy Council in Saiyid Jowad  

Hussain v. Gendan Singh [AIR 1926 PC 93] and a decision of the Patna  

High Court  in  Thakur Pandey v.  Bundi  Ojha [AIR 1981 Patna 27] in  

support of his contention.

The issue:

4. ‘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  

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share  or  interest  in  it.  A  person  who  does  not  have  a  share  in  such  

property cannot obviously be a party to a 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. For example, where four brothers  

owning a property divide it among themselves by metes and bounds, it is  

a partition. But if only one brother wants to get his share separated and  

other three brothers continue to remain joint, there is only a separation of  

the share of one brother.   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?  

5. In a suit is for partition or separation of a share, the court at the first  

stage decides whether the plaintiff has a share in the suit property and  

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whether he is entitled to division and separate possession. The decision  

on these two issues is exercise of a judicial function and results in first  

stage decision termed as ‘decree’ under Order 20 Rule 18(1) and termed  

as  ‘preliminary  decree’  under  Order  20  Rule  18(2)  of  the  Code.  The  

consequential  division  by  metes  and  bounds,  considered  to  be  a  

ministerial  or  administrative  act  requiring  the  physical  inspection,  

measurements,  calculations  and  considering  various  permutations/  

combinations/alternatives  of  division is  referred to the Collector  under  

Rule 18(1) and is the subject matter of the final decree under Rule 18(2).  

The question is whether the provisions of Limitation Act are inapplicable  

to an application for drawing up a final decree.

6. Rule 18 of Order 20 of the Code of Civil Procedure (‘Code’ for  

short) deals with decrees in suits for partition or separate possession of a  

share therein which is extracted below:

“18.  Decree  in  suit  for  partition  of  property  or  separate  possession of a share therein.-- Where the Court passes a decree for  the partition of property or for the separate possession of a  share  therein, then, --

(1) if and in so far as the decree relates to an estate assessed to  the payment of revenue to the Government, the decree shall declare  the rights of the several parties interested in the property, but shall  direct such partition or separation to be made by the Collector, or  any gazetted  subordinate  of  the  Collector  deputed by him in  this  

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behalf, in accordance with such declaration and with the provisions  of section 54;

(2) 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  preliminary  decree  declaring  the  rights  of  the  several  parties,  interested in the property and giving such further directions as may  be required.”

The terms 'preliminary decree' and 'final decree' used in the said rule are  

defined in Explanation to section 2(2) of the Code and reads thus :  

“A 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.”  

Section 54 of the Code dealing with partition of estate or separation of  

share, relevant for purposes of Rule 18(1) reads thus:  

“Where the decree is for the partition of an undivided estate assessed  to the payment  of revenue of the government,  or  for the separate  possession of a share of such an estate, the partition of the estate or  the separation of the share shall  be made by the Collector or any  gazetted sub-ordinate of the Collector deputed by him in this behalf,  in  accordance  with  the  law  (if  any)  for  the  time  being  in  force  relating to the partition, or the separate possession of shares, of such  estates.”

Rule 13 of  Order  26 of  the Code dealing with Commissions  to  make  

partition  of  immovable  property,  relevant  for  purposes  of  Rule  18(2)  

reads thus :  

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“Where a preliminary decree for partition has been passed, the Court  may, in any case not provided for by section 54, issue a commission  to such person as it  thinks fit  to make the partition or separation  according to the rights as declared in such decree.”  

7. We may now turn to the provisions of the Limitation Act, 1963.  

Section 3 of the Act provides that subject to sections 4 to 24, every suit  

instituted,  appeal  preferred  and  application  made  after  the  prescribed  

period shall be dismissed. The term 'period of limitation' is defined  as the  

period of limitation prescribed for any suit, appeal or application by the  

Schedule to the Act (vide clause (j) of section 2 of the Act). The term  

“prescribed period” is  defined as the period of limitation computed in  

accordance with the provisions of the said Act. The Third Division of the  

Schedule  to  the  said  Act  prescribes  the  periods  of  limitation  for  

Applications. The Schedule does not contain any Article prescribing the  

limitation for an application for drawing up of a final decree. Article 136  

prescribes  the  limitation  for  execution  of  any decree  or  order  of  civil  

court as 12 years when the decree or order becomes enforceable. Article  

137  provides  that  for  any  other  application  for  which  no  period  of  

limitation is provided elsewhere in that division, the period of limitation  

is three years which would begin to run from the time when the right to  

apply  accrues.  It  is  thus  clear  that  every  application  which  seeks  to  

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enforce a right or seeks a remedy or relief on the basis of any cause of  

action in a civil court, unless otherwise provided, will be subject to the  

law  of  limitation.  But  where  an  application  does  not  invoke  the  

jurisdiction of the 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 in a suit  which is already pending,  

which contains  no fresh or  new prayer  for  relief  is  not  one to  which  

Limitation Act, 1963 would apply. These principles are evident from the  

provisions of the Code and the Limitation Act and also settled by a series  

of judgments of different High Court over the decades (See : for example,  

Lalta Prasad vs. Brahma Din [AIR 1929 Oudh 456], Ramabai Govind v.   

Anant Daji [AIR 1945 Bom. 338],  Abdul Kareem Sab vs. 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].  

We  may  also  draw  support  from  the  judgments  of  this  Court  in  

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].  

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8. Once a court passes a preliminary decree, it is the duty of the court  

to ensure that the matter is referred to the Collector or a Commissioner  

for  division  unless  the  parties  themselves  agree  as  to  the  manner  of  

division. This duty in the normal course has to be performed by the court  

itself as a continuation of the preliminary decree. Sometimes either on  

account of the pendency of an appeal or other circumstances, the court  

passes  the  decree  under  Rule  18(1)  or  a  preliminary  decree  under  

Rule 18(2) and the matter goes into storage to be revived only when an  

application is  made by any of  the parties,  drawing its  attention to the  

pending issue and the need for referring the matter either to the Collector  

or a Commissioner for actual division of the property. Be that as it may.

9. The  following  principles  emerge  from  the  above  discussion  

regarding partition suits :

9.1) In  regard  to  estates  assessed  to  payment  of  revenue  to  the  

government  (agricultural  land),  the  court  is  required  to  pass  only  one  

decree declaring the rights of several parties interested in the suit property  

with  a  direction  to  the  Collector  (or  his  subordinate)  to  effect  actual  

partition or separation in accordance with the declaration made by the  

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court in regard to the shares of various parties and deliver the respective  

portions  to  them,  in  accordance  with  section  54  of  Code.  Such  

entrustment to the Collector under law was for two reasons. First is that  

Revenue  Authorities  are  more  conversant  with  matters  relating  to  

agricultural lands. Second is to safeguard the interests of government in  

regard to revenue.  (The second reason, which was very important in the  

19th century and early 20th century when the Code was made, has now  

virtually  lost  its  relevance,  as  revenue  from  agricultural  lands  is  

negligible). Where the Collector acts in terms of the decree, the matter  

does not come back to the court at all. The court will not interfere with  

the partitions by the Collector, except to the extent of any complaint of a  

third party affected thereby.  

9.2) In  regard  to  immovable  properties  (other  than agricultural  lands  

paying land revenue), that is buildings, plots etc. or movable properties:  

(i) where the court  can conveniently  and without  further  enquiry  make  the  division  without  the  assistance  of  any  Commissioner,  or  where  parties  agree  upon  the  manner  of  division,  the court  will  pass a single decree comprising the  preliminary decree declaring the rights of several parties and  also a final decree dividing the suit properties by metes and  bounds.

(ii) where  the  division  by  metes  and  bounds  cannot  be  made without further inquiry, the court will pass a preliminary  

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decree  declaring  the  rights  of  the  parties  interested  in  the  property  and  give  further  directions  as  may  be  required  to  effect the division. In such cases, normally a Commissioner is  appointed (usually  an Engineer,  Draughtsman,  Architect,  or  Lawyer) to physically examine the property to be divided and  suggest  the  manner  of  division.  The  court  then  hears  the  parties on the report, and passes a final decree for division by  metes and bounds.  

The function of making a partition or separation according to the rights  

declared  by  the  preliminary  decree,  (in  regard  to  non-agricultural  

immovable properties and movables) is entrusted to a Commissioner, as  

it  involves  inspection  of  the  property  and  examination  of  various  

alternatives with reference to practical utility and site conditions. When  

the  Commissioner  gives  his  report  as  to  the  manner  of  division,  the  

proposals contained in the report are considered by the court; and after  

hearing objections to the report, if any, the court passes a final decree  

whereby the relief sought in the suit is granted by separating the property  

by metes and bounds. It is also possible that if the property is incapable  

of proper division, the court may direct sale thereof and distribution of  

the proceeds as per the shares declared.  

9.3) As the 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  

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the suit. The 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 the Limitation  

Act) nor an application seeking a fresh relief (falling under Article 137 of  

Limitation Act). It is only a reminder to the court to do its duty to appoint  

a Commissioner, get a report, and draw a final decree in the pending suit  

so that the suit is taken to its logical conclusion.  

10. The three decisions relied on by the petitioner (referred to in para 3  

above) are not relevant for deciding the issue arising in this case. They all  

relate  to  suits  for  mortgage and  not  partition.  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 Rule 2  

or a decree for sale under Rule 4 of Order 34 of the Code), 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  

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the event of non payment of the amount.   When the amount is not paid  

the plaintiff gets a right to seek a final decree for foreclosure or for sale.  

On the other hand, in a partition suit the preliminary decrees only decide  

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.   A decree in a partition suit  

enures to the benefit of all the co-owners and therefore, it is sometimes  

said  that  there  is  really  no  judgment-debtor  in  a  partition  decree.  A  

preliminary  decree  for  partition  only  identifies  the  properties  to  be  

subjected to partition, defines and declares the shares/rights of the parties.  

That part of the prayer relating to actual division by metes and bounds  

and  allotment  is  left  for  being  completed  under  the  final  decree  

proceedings. Thus 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  

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suit. Consequently an application for a final decree in a mortgage suit is  

different from an application for final decree in partition suits.  

A suggestion for debate and legislative action

11. The century old civil procedure contemplates judgments, decrees,  

preliminary  decrees  and final  decrees  and execution  of  decrees.  They  

provide for a ‘pause’ between a decree and execution. A 'pause' has also  

developed by practice between a preliminary decree and a final decree.  

The ‘pause’ is  to enable the defendant  to voluntarily  comply with the  

decree  or  declaration contained in the preliminary decree.  The ground  

reality is that defendants normally do not comply with decrees without  

the pursuance of  an execution.  In very few cases,  the defendants  in a  

partition  suit,  voluntarily  divide  the  property  on  the  passing  of  a  

preliminary decree. In very few cases, defendants in money suits, pay the  

decretal amount as per the decrees. Consequently, it is necessary to go to  

the second stage that is levy of execution, or applications for final decree  

followed by levy of execution in almost all cases.  

12.  A  litigant  coming  to  court  seeking  relief  is  not  interested  in  

receiving a paper decree, when he succeeds in establishing his case. What  

he wants is relief. If it is a suit for money, he wants the money. If it is a  

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suit for property, he wants the property.  He naturally wonders why when  

he files a suit for recovery of money, he should first engage a lawyer and  

obtain a decree and then again engage a lawyer and execute the decree.  

Similarly, when he files a suit for partition, he wonders why he has to  

first  secure a preliminary decree,  then file an application and obtain a  

final  decree  and  then  file  an  execution  to  get  the  actual  relief.  The  

common-sensical query is: why not a continuous process? The litigant is  

perplexed as to why when a money decree is passed, the court does not  

fix the date for payment and if it is not paid, proceed with the execution;  

when a preliminary decree is passed in a partition suit, why the court does  

not forthwith fix a date for appointment of a Commissioner for division  

and make a final decree and deliver actual possession of his separated  

share.  Why is it necessary for him to remind the court and approach the  

court at different stages?  

13. Because of the artificial division of suits into preliminary decree  

proceedings, final decree proceedings and execution proceedings, many  

Trial  judges  tend  to  believe  that  adjudication  of  the  right  being  the  

judicial  function,  they  should  concentrate  on  that  part.  Consequently,  

adequate  importance  is  not  given  to  the  final  decree  proceedings  and  

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execution proceedings which are considered to be ministerial functions.  

The focus is on disposing of cases, rather than ensuring that the litigant  

gets  the  relief.  But  the  focus should not  only be on early  disposal  of   

cases, but also on early and easy securement of relief for which the party  

approaches the court. Even among lawyers, importance is given only to  

securing of a decree, not securing of relief. Many lawyers handle suits  

only till preliminary decree is made, then hand it over to their juniors to  

conduct the final decree proceedings and then give it to their clerks for  

conducting the execution proceedings. Many a time, a party exhausts his  

finances and energy by the time he secures the preliminary decree and has  

neither the capacity nor the energy to pursue the matter to get the final  

relief. As a consequence, we have found cases where a suit is decreed or a  

preliminary  decree  is  granted  within  a  year  or  two,  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.  

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14. In  the  present  system,  when  preliminary  decree  for  partition  is  

passed, there is no guarantee that the plaintiff will see the fruits of the  

decree.  The  proverbial  observation  by  the  Privy  Council  is  that  the  

difficulties of a litigant begin when he obtains a decree. It is necessary to  

remember that success in a suit means nothing to a party unless he gets  

the relief. Therefore to be really meaningful and efficient, the scheme of  

the Code should enable a party not only to get a decree quickly, but also  

to get the relief quickly. This requires a conceptual change regarding civil  

litigation, so that the emphasis is not only on disposal of suits, but also on  

securing relief  to the litigant.  We hope 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. If there is a  

practice of assigning separate numbers for final decree proceedings that  

should be avoided. Issuing fresh notices to the defendants at each stage  

should also be avoided. The Code of Civil Procedure should provide for a  

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continuous and seamless process from the stage of filing of suit to the  

stage of getting relief.  In money suits and other suits requiring a single  

decree, the process of suit should be a continuous process consisting of  

the first stage relating to determination of liability and then the second  

stage of execution and recovery, without any pause or stop or need for the  

plaintiff  to  initiate  a  separate  proceedings  for  execution.  In  suits  for  

partition  and  other  suits  involving  declaration  of  the  right  and  

ascertainment/quantification of the relief, the process of the suit should be  

continuous, consisting of the first stage of determination and declaration  

of the right, second stage of ascertainment/division/quantification, and the  

third stage of execution to give actual relief.  

Conclusion

15. In so far final decree proceedings are concerned, we see no reason  

for even legislative intervention. As the provisions of the Code stand at  

present, initiation of final decree proceedings does not depend upon an  

application for final  decree for initiation (unless the local  amendments  

require the same). As noticed above, the Code does not contemplate filing  

an application for final decree. Therefore, when a preliminary decree is  

passed in a partition suit, the proceedings should be continued by fixing  

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dates for further proceedings till a final decree is passed. It is the duty and  

function of the court.  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.

16. In view of the foregoing, we are of the view that the application  

filed by the plaintiff in this case for drawing up of a final decree, was  

rightly held to be not subject to any period of limitation. We therefore  

dismiss this special leave petition as having no merit, with a request to  

expedite the final decree proceedings.

………………………..J. (R. V. Raveendran)

……………………….J. (B. Sudershan Reddy)

New Delhi;  August 21, 2009.  

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