IMPORTANT POINT
Where parties did not affect preliminary decree by metes and bounds by mutual agreement; question of limitation does not arise in an application for appointment of court commissioner for final decree.

ORDER :

Only question raised in the present appeal is with respect to the limitation for execution of preliminary decree for partition. In the instant case, the application for execution of the decree was filed after thirty years of the preliminary decree. That too in the shape for the appointment of an court Commissioner so as to carry out the preliminary decree which has been passed on 23.11.1959. The application for the execution of the decree was filed on 3.10.1989 i.e. after thirty years.

2. Learned counsel appearing on the appellant has submitted that since the application had been filed for appointment of court commissioner, it ought to be governed by provisions of Article 137 of the Limitation Act, 1963.

3. On the other hand, learned counsel appearing on behalf of the decree holder has urged that in substance an application has been filed for final decree proceedings and the cost of the final proceedings is paid then the preliminary decree is executed, thus application for execution of preliminary decree for partition could not be said to be barred by limitation.

4. In our opinion a preliminary decree for partition crystallizes the rights of parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings. Till partition is carried out and final decree is passed, there is no question of any limitation running against right to claim partition as per preliminary decree. Even when application is filed seeking appointment of Commissioner, no limitation is prescribed for this purpose, as such, it would not be barred by limitation, lis continues till preliminary decree culminates in to final decree.

5. The matter is no more res integra. The Division Bench of the High Court of Calcutta in In Bhusan Chandra Mondal vs. Chhabimoni Dasi, AIR 1948 Cal 363 considered the question when a preliminary decree was passed in a suit for partition in courts, the court consider the applicability of Article 181 of the Limitation Act, 1908 (in short 'the old Act') the court has laid down thus :-

“(6) Article 181 is the residuary Article relating to applications. In a mortgage suit it has been held that the application for a final decree has to be made within 3 years by reason of Article 181, Limitation Act. But those decisions are not helpful because O.34 R.4 Civil P.C. expressly requires the mortageee to make an application for a final decree, either for foreclosure or for sale. In a suit for partition and/or accounts a party need not make an application for making the decree final. After the preliminary decree is in such a suit has been passed it is the usual practice for the plaintiff to make an application for the appointment of the Commissioner but there were no legal bar in the court appointing the commissioner suo motu and asking the plaintiff to deposit the commissioner's fee in Court. If he does not deposit the fees any other party to the suit can do so and take upon himself the carriage of the proceedings if the plaintiff and none of the other parties make the deposit the fact that the court would not be able to dismiss the suit is, however, another matter.

(7) We therefore do not see our way to accept the petitioner's contentions on this point also.”

6. Similar is the view adopted by a Single judge of the High Court of Kerala in Laxmi & Ors. vs. A. Sankappa Alwa & Ors. [AIR 1989 Ker 289] the logic given by the High Court of Kerala that the preliminary decree does not completely dispose of the suit. The suit continues till the final decree is passed. Suit is pending till the passing of the final decree. There is no necessity of filing an application to apply for the final decree proceedings by litigants, then there is an obligation on the court for drawing up a final decree. The court had held thus :-

“15.I turn to consider the question of obligation of the Court and the parties after a preliminary decree is given in a partition suit. I do not propose to discuss that matter elaborately. I