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2008(4) Supreme 137
SUPREME COURT OF INDIA
S.B. Sinha, J.
Bikoba Deora Gaikwad & Ors. — Appellants
versus
Hirabai Marutirao Ghorgare & Ors. — Respondents
Appeal (civil) 4174 of 2008
Decided on : 27-05-08
Facts of the Case :
Whether an application for initiating a final decree proceedings in terms of Section 54 of the Code of Civil Procedure, 1908 would be governed by any provision contained in the Schedule appended to the Limitation Act, 1963 was the question involved in this appeal?
Findings of the Court :
Section 54 only provides for a ministerial functions of a Court. It cannot be termed to be an execution proceeding. It is now well settled that for purposes of construing the nature of the decree one has to look to the terms thereof rather than speculate upon the Courts intentions. A bare perusal of Section 54 read with Order XX Rule 18 of the Code leaves no manner of doubt that application filed before 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, question of application of provisions of Limitation Act would not apply.Articles 136 and 137 of Limitation Act, held to have no application- Even otherwise, contention of appellants held wholly unsustainable. Such a contention had been raised even in earlier objections. They were rejected. The appeals preferred thereagainst had also been dismissed. In that view of the matter, the appellants could not have agitated same issue by filing another objection. Appeal having no merit was dismissed.
Result : Appeal dismissed.
In this case, the Court clarified that a final decree proceeding can be initiated at any point in time, and no specific limitation period is prescribed for the initiation of a final decree. The Court emphasized that the application for executing a final decree is not subject to a limitation period, and the absence of such a period means that the Court does not specify a time limit for filing or initiating final decree proceedings. Therefore, the Court did not mention a specific limitation period for final decree proceedings in this case.
JUDGMENT
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, ‘the Code’) 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 :
“It 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.”
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 :
(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
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