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PETITIONER: SHANKAR BALWANT LOKHANDE (DEAD) BY L.RS.

       Vs.

RESPONDENT: CHANDRAKANT SHANKAR LOKHANDE & ANR.

DATE OF JUDGMENT20/03/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 AIR 1211            1995 SCC  (3) 413  JT 1995 (3)   186        1995 SCALE  (2)318

ACT:

HEADNOTE:

JUDGMENT: K.   RAMASWAMY, J.: 1.   These appeals by special leave arise from the  judgment of the High Court of Bombay dated April 7, 1977 by which LPA 15/77  was  dismissed in limine.  The facts lie in  a  short compass  for deciding the question of law arising  in  these appeals.   On  August  2,  1955,  a  preliminary  decree  in Spl.Civil   Suit   No.296/49  was  passed   declaring   that Chandrakant-first respondent was entitled to 1/6th share and the  appellants  were entitled to 5/6th share  in  the  suit properties.   An order was made on April 19, 1958  directing preparation of a final decree.  On December 19, 1960,  first respondent supplied non-judicial stamps to engross and  sign the  final  decree  to the extent of his  1/6th  share.   On January  11,  1961,  a final decree,  in  that  behalf,  was engrossed  on  the  stamped paper and signed  by  the  trial court.   Since  the  appellants had not  supplied  the  non- judicial stamps, no final decree was made qua them.  On  the other  hand,  Darkhast  No.41/63  was  filed  by  them   for execution  of the preliminary decree which was  subsequently dismissed  as withdrawn.  Darkhast No. 70 was filed in  1965 which was dismissed on March 13, 1968 as the application was barred  by limitation.  In First Appeal No.605/68, the  High Court  held that "in view of the fact that no  final  decree was  passed on non-judicial stamps, there was no  decree  in existence  for  its execution".  Therefore,  on  August  12, 1975,  the  appeal was dismissed.  On August 14,  1975,  the appellants  filed  Misc.Application No.538/  75  before  the trial  court to accept the nonjudicial stamps and to pass  a final  decree.   The said application was contested  by  the respondent  pleading  bar of limitation.   The  trial  court overruled  the  objection  and allowed  the  application  on 3.2.76  holding  that  the application  was  not  barred  by limitation.  In First Appeal No.229/76, Learned Single Judge of the High Court held that the limitation began to run from the date when the direction was given to pass final  decree.

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Since  the application was filed after the expiry of  period of  limitation  counted from that date, the  Court  held  on March  7, 1977 that it was barred by limitation.  As  stated earlier, on further appeal, the division bench dismissed the appeal in limine. 2.   The  crucial question for consideration is as  to  when the  limitation begins to run for filing an  application  to pass  final  decree on stamped papers.  There is  no  direct decision  of  this court on this  point.   Therefore,  after hearing  counsel at length, we reserved the judgment in  the appeal  and independently made detailed examination.   There is  divergence  of  opinion  in  the  High  Courts  on  this question. 3.   Order 20 Rule 7 of CPC envisages that the decree "shall bear the day on which the judgment was pronounced, and, when the  judge  has satisfied himself that the decree  has  been drawn up in accordance with the judgment, he shall sign  the decree".  Section 2(2) of CPC defines "decree" to mean  "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".  A preliminary decree is  one  which declares  the rights and liabilities of the parties  leaving the  actual result to be worked out in further  proceedings. Then,  as a result of the further inquiries  conducted  pur- suant  to the preliminary decree, the rights of the  parties are fully determined and a 189 decree is passed in accordance with such determination which is  final.   Both the decrees are in the same  suit.   Final decree may be said to become final in two ways: (i) when the time  for appeal has expired without any appeal being  filed against  the  preliminary  decree or  the  matter  has  been decided  by  the highest court; (ii) when,  as  regards  the court  passing  the  decree,  the  same  stands   completely disposed  of It is in the latter sense the word "decree"  is used  in,  s.2(2) of CPC.  The appealability of  the  decree will, therefore, not affect its character as a final decree. The  final decree merely carries into fulfillment  the  pre- liminary decree. 4.   Order  20  Rule 18 envisages passing of  a  decree  for partition of property or for separate possession of a  share therein.  Sub-r. (2) is material which provides that "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". (Emphasis ours) Thus, it could be seen that where the decree relates  to  any  immovable property and  the  partition  or separation  cannot  be  conveniently  made  without  further inquiry,  then the court is required to pass  a  preliminary decree declaring the rights of several parties interested in the  property.   The court is also empowered  to  give  such further  directions  as  may be required in  this  behalf  A preliminary  decree in a partition action, is a step in  the suit which continues until the" final decree is passed.   In a suit for partition by a coparcenar or cosharer, the  court should  not give a decree only for the plaintiffs share,  it should  consider shares of all the heirs after  making  them parties  and then to pass a preliminary decree.   The  words "declaring  the rights of the several parties interested  in the  property" in sub-rule(2) would indicate that shares  of

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the  parties, other than the plaintiff(s), have to be  taken into account while passing  preliminary decree.   Therefore, preliminary  decree for partition is only a  declaration  of the  rights of the parties and the shares they have  in  the joint family or coparcenary property, which is the  subject- matter  of  the suit.  The final decree should  specify  the division by metes and bounds and it needs to be engrossed on stamped paper. 5.   The preliminary decree, in these appeals declared  that the properties belong to the joint family of the  plaintiffs and  defendant No. 1 set out in Schedules ’A’ and ’B’.   The details of the properties have been enumerated and they  are liable  to  partition  as  per  the  right  of  the  parties mentioned  in  the  preliminary  decree.   In  other  words, Chandrakant  has 1/6th share and the appellants  have  5/6th share.   The former is directed to pay certain  sum  towards marriage  expenses  of  his sisters with  a  charge  on  the property  allotted  to his share.  He is  also  entitled  to mesne  profits from the date of the institution of the  suit in respect of certain properties specified in para 7 of  the preliminary  decree.   A  Commissioner was  directed  to  be appointed to partition the properties mentioned in paragraph 8 of the decree.  Para 9 declares certain charges in respect of  specified  properties.   It would, thus,  he  seen  that except  declaration  of the rights of the  parties  and  the charge  on  the  shares,  there is  no  final  decree.   The partition  is  to  be effected by  the  Commissioner  to  be appointed and as per 190 directions  from  the  court in that  behalf  A  preliminary decree in respect of 1/6th share of the first respondent was engrossed  on  the  stamped papers submitted  by  him.   The question  is  whether the decree then became final  and  the rights of the parties stood crystallised, as envisaged under s.2(2) of CPC and, if so, when the limitation would begin to run for execution thereof? 6.It  is seen that the single Judge of the High  Court  held that  the  limitation began to run from the  date  when  the direction  was  given by the civil court to pass  the  final decree  and  since  the  application was  not  made  by  the appellants   within   three  years  from  that   date,   the application  for execution stood barred.  The  single  Judge concluded thus               "I,  therefore, hold that limitation  for  ex-               ecuting a final decree in a suit for partition               starts  on the date on which the final  decree               is  passed, that is, on the date on which  the               judgment  directing  the final  decree  to  be               drawn  is  given and not from  any  subsequent               date  on  which the party  supplies  the  non-               judicial stamp for engrossing the final decree               and when the Court engrosses the final  decree               on the stamp and signs it.  " 7.   Question is whether the aforesaid view is    correct? Since the decree is one which is   prior  to the  Limitation Act, 1963, we are to look to the provisions contained in the Limitation  Act,  1908,  (for short,  ’the  old  Act’),  for deciding the controversy.  Article 182 of the First Schedule to the old Act envisages that "for the execution of a decree or order of any civil court not provided for by Article  183 or  by Section 48 of CPC, the period of limitation of  three years begins to run from the date the final order was passed on an application made in accordance with law to the  proper court  for  execution,  or  to take  some  step  in  aid  of execution  of  the decree or order. Explanation  1  provides

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that "where the decree or order has been passed severally in favour of more persons than one, distinguishing portions  of the  subject-matter as payable or deliverable to  each,  the application  mentioned in note 5 of the article  shall  take effect  in favour only of such of the said persons or  their representatives as it may be made by.  But where  the decree or  order has been passed jointly in favour of more  persons than  one, such application, if made by any one or  more  of them, or by his or their representatives, shall take  effect in  favour of them all." Therefore, it would be  clear  that where  decree or order has been passed jointly against  more persons than one, the application shall take effect  against them  all,  even if it is made by one or more.  It  is  seen that  the preliminary decree is a declaration of the  rights of  the  parties  with  a charge on  the  properties  to  be allotted and a Commissioner is required to be appointed  for partition  of certain specified properties.   Therefore,  as envisaged in sub-r. (2) of Rule 18 of Order 20, it was  only a  preliminary  decree declaring the rights of  the  parties with  power to the court to give further directions in  that behalf It is settled law that more than one final decree can be passed.  With the passing of the final decree in  respect of  the  share of the first respondent, the  rights  of  the parties  in  respect  of  other  properties  have  not  been crystallised and no final decree dividing the properties  by metes and bounds was passed nor any application was made  to divide the properties in term’s of the shares of the parties declared in the preliminary decree. 191 8.   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  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. 9.   In  Rameshwar  Singh-Decree holder v.  Homeswar  Singh- Judgment-debtor,  AIR 1921 Privy Council 3 1, the facts,  in nutshell, were: There was a joint liability for the  payment of  some amount under a grant.  A decree in that behalf  was passed  and the property was sought to be proceeded  against the, estate for execution.  The contention was that since  a decree  was made earlier which was executable but no  appli- cation  was  made  within  limitation,  the  decree   became unexecutable, being barred by limitation.  That was accepted by  the High Court.  On appeal, the Judicial Committee  held that "in order to make the provisions of the Limitation  Act apply,  the decree sought to be enforced must have  been  in such a form as to render it capable in the circumstances  of being enforced".  The decree being limited in its scope,  it was held that limitation did not begin to run from the  date of  decree  as drawn.  The contention of  Smt.Jaishree  Wad, learned  council  for  the respondent,  is  that  the  Privy Council upheld the principle of making an application within three  years from the date when the right to apply  accrues, as  provided in Article 181 of the old Limitation  Act,  the ratio  of  the aforesaid case applies to the facts  in  this case  since the application had not been made  within  three years or within 12 years and so, it was hopelessly barred by

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limitation.   She  placed reliance on the judgment  of  this Court  in Yeshwant v. Walchand, AIR 1951 SC 17 also, and  on judgments in Maksudan Prasad v. Smt.  Lakshmi Devi, AIR 1983 Patna 105, Pandivi Satyanandam v P. Nammayya AIR 1938 Madras 307, and Basamma v. Shivamma, AIR 1963 Mysore 323. 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  pre- liminary  decree.  The preliminary decree had only  declared the  shares of the parties and properties were liable to  be partitioned  in  accordance  with those  shares  by  a  Com- missioner  to  be appointed in this  behalf  Admittedly,  no Commissioner  was  appointed and no final  decree  had  been passed relating to all. 11.  In  Yashwant’s  case   (supra),  the  facts  were  that preliminary  decree for accounting was passed in a suit  for rendition  of  account of partnership.   There  was  deficit court fee payable.  It was contended that until the  payment of deficit court fee was made, right had not been accrued to draw the final decree and that therefore, limitation  begins to  run only from the date of paying the deficit court  fee. This  court  negatived  the contention  and  held  that  the preliminary  decree  was not a conditional  decree  and  its enforceability was not dependent upon the future act  namely pay- 192 ment  of  the deficit court fee; and payment  thereof  at  a later  date would not provide fresh limitation to  run  from that date. 12.  As to Maksudan’s case (supra), we state that it had not been  correctly decided.  Limitation does not begin  to  run from the date when direction is given to pass final  decree. Mere giving of direction to supply stamped paper for passing final  decree  does not amount to passing  a  final  decree. Until the final decree determining the rights of the parties by  metes  and bound is drawn up and  engrossed  on  stamped paper(s)  supplied  by the parties, there is  no  executable decree.  In this behalf, it is necessary to note that s.2(a) of the Bombay Stamp Act, 1958, as amended by the local  Act, provides  that  a decree of civil. court is required  to  be stamped as per Article 46 in Schedule-1.  Section 34 thereof lays down that "no instrument chargeable with duty shall  be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence,  or shall be acted upon, registered or authenticated by any such person  or by any public officer unless such  instrument  is duly  stamped".  Therefore, executing court  cannot  receive the  preliminary  decree unless final decree  is  passed  as envisaged under Order 20 Rule 18(2).  After final decree  is passed  and a direction is issued to pay stamped papers  for engrossing  final  decree  thereon  and  the  same  is  duly engrossed  on  stamped paper(s), it  becomes  executable  or becomes   an  instrument  duly  stamped.   Thus,   condition precedent  is to draw up a final decree and then to  engross it  on stamped paper(s) of required value.  These  two  acts together  constitute final decree, crystallizing the  rights of  the  parties in terms of the preliminary  decree.   Till then, there is no executable decree as envisaged in Order 20 Rule  18(2),  attracting residuary Article 182  of  the  old Limitation Act.  Contrary views of the High Courts, are  not good law.  A Division Bench of the Andhra Pradesh High Court in  Smt.  Kotipalli Mahalakshmamma v. K. Ganeswara Rao,  AIR 1960 AP 54, correctly decided the question of law which held that the limitation begins to run only after a final  decree is engrossed on stamped papers.

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13.  Accordingly,  the appeals arc allowed.   The  judgments and  orders of the High Court arc set aside and that of  the trial  court stands confirmed.  The trial court is  directed first to pass the final decree and then to engross the  same on the stamped papers already supplied by the appellants; if further  stamped papers be needed, reasonable time would  be given  to supply the same.  The final decree would  then  be drawn  thereon.  The court would, thereafter,  proceed  with the execution of the final decree in accordance with law. 14.  In  the circumstances, the parties am directed to  bear their own costs throughout. 195