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2012 (2) Supreme 368
SUPREME COURT OF INDIA
Dalveer Bhandari and Dipak Misra, JJ.
Bimal Kumar & Another — Appellants
versus
Shakuntala Debi & Others — Respondents
Civil Appeal Nos. 2524 of 2012
(Arising out of S.L.P. (civil) No. 25038 of 2009
Decided on : 27-2-2012
Preliminary Decree and final Decree-Distinction between- A preliminary decree declares the rights or shares of the parties to the partition-Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of divided property, then such inquiry shall be held and pursuant to the result of further inquiry, a final decree shall be passed- 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 pursuant to the preliminary decree, rights of the parties are finally determined and a decree is passed in accordance with such determination, which is the final decree- Hence fundamentally, the distinction between preliminary and final decree is that: a preliminary decree merely declares the rights and shares of the parties and leaves room for some -further inquiry to be held and conducted pursuant to the directions made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined a decree incorporating such determination needs to be drawn up which is the final decree (Para 22)
Facts of the Case :
Present Appeal has been filed against order passed by High Court by which it dislodged order passed by Sub-Judge (I), Ranchi, whereby he had dismissed Execution Case filed by respondents as being barred by limitation.
Findings of the Court :
The Court held that Compromise decree had status of a final decree. The latter suit filed by the appellants was for partition and declaring the ex parte compromise decree as null and void. There was no stay of the earlier judgment or any proceedings emanating therefrom. In the absence of any interdiction from any court, decree-holder was entitled to execute the decree. here was no impediment or disability in the way of the respondents to execute the decree but the same was not done. Hence held that initiation of execution proceedings was indubitably barred by limitation.Impugned order passed by High Court was set aside and that of executing court was restored. Appeal was allowed
JUDGMENT
Dipak Misra, J.
Leave granted.
2. In this appeal, the assail is to the order dated 19.9.2009 passed by the learned single Judge of Jharkhand High Court at Ranchi in C.R. No. 53 of 2007 by which he has dislodged the order dated 10.7.2006 passed by the learned Sub-Judge (I), Ranchi, whereby he had dismissed the Execution Case No. 8 of 2004 filed by the respondents as being barred by limitation.
3. Filtering the unnecessary details, the facts which are requisite to be frescoed for the purpose of disposal of the present appeal are that one Kanilal Kasera filed a Partition Suit No. 131 of 1962 against his father, Nanak Kasera, and other brothers. The suit was compromised leaving aside Kishori Lal Kasera, the father of the present appellants, and a joint petition of compromise between the plaintiff and the defendant Nos. 1, 2, 4 to 9 and 11 to 18 was filed. It is worth noting that Kishori Lal Kasera had appeared in the suit and filed the written statement but thereafter chose not to contest.
4. The petition of compromise contained that the defendant Nos. 1, 9, 11 and 12 had relinquished and given up all their interests in item Nos. 3 and 8 of the suit schedule of property, being Holding No. 285 of new holding No. 509A of Ward No. II situated on portion of Municipal Survey Plot No. 621 and Holding No. 431 of Ward No. 1 situated on Municipal Survey Plot No. 902, and further declared that they had no claim or concern with any other properties involved in the suit; that the business, namely, “SEVEN BROTHERS STEEL FURNITURE WORKS”, item 5 of - the schedule, belonged exclusively to the defendant No. 2, Moti Lal Kasera, and neither the plaintiff nor any of the other defendants either ever had or shall ever have any claim or interest; and that one half of the house and premises comprised in Municipal Holding No. 431, Ward No. 1, item 3 of the schedule, and half of Holding No. 509 A of Ward II, situated on portion of M.S. Plot No. 631, item 2 of the schedule, shall belong to the defendant No. 2 with all the liabilities and outstanding dues and the plaintiff and the other defendants shall have no liabilities or interest in the said properties; and that the business carried on under the name of `Chotanagpur Tin Works’, item 6A of the schedule, was the sole separate business of the defendant No. 5, Prakash Kumar Kasera, and the plaintiff or the other defendants had no claim on the said property.
5. The application further contained that the partition of the house and premises comprised in Holding No. 431 of Ward I, item 3 of the schedule, marked in green colour in the exhibit, shall belong exclusively to the defendant no. 4, Mohan Lal Kasera, and neither the plaintiff nor the other defendants shall have any claim or interest; that the -business of iron shop at Bazaar Tan Ranchi, item 6 (c) of the schedule, was the separate and exclusive business of the defendant No. 6, Surendra Lal Kasera, and none others had any claim or interest and the portion of the building and premises comprised in Municipal Holding No. 431 of Ward No. I, item 3 of the schedule, marked in yellow colour, shall also belong to the defendant No. 6 and no one else had any claim or interest; that the portion of the building and premises comprised in Municipal Holding No. 431 of Ward No. I, item 3 of the schedule, marked in blue colour, and one-half of the shop premises comprised in Holding No. 509 A over portion of M.S. Plot No. 621 being item No. 2 of the schedule to the plaint shall exclusively belong to the plaintiff and he shall have absolute right over the same.
6. That apart, the plaintiff had agreed to pay up all outstanding dues of Bindrilal Agarwalla against the defendant No. 1 and none of the defendants shall be liable for the same.
7. It was also agreed upon that the House situated on Holding 6 Ward II of the Ranchi Municipality being comprised of Khata No. 71 plot No. 72 area 61 decimal and -plot No. 79 area 7= decimal total area measuring 14 decimal, be
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