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Bombay High Court
SHAH,SAWANT
Keshav Ramchandra Malekar - Appellant
Versus
Ramdas Dasharath Malekar - Respondent
Decided On : 09/30/1975
EXECUTION OF DECREE - APPLICATION FOR EXECUTION - TIME LIMITATION - APPLICATION FOR EXECUTION OF PRELIMINARY DECREE - WHETHER CAN BE MADE - WHETHER APPLICATION FOR EXECUTION CAN BE MADE BEFORE FINAL DECREE IS DRAWN UP - INTERPRETATION OF EXPRESSION "APPLICATION FOR EXECUTION" - WHETHER APPLICATION FOR EXECUTION OF PRELIMINARY DECREE CAN BE MADE IN ANY CASE - WHETHER PRELIMINARY DECREE CAN OR CANNOT BE EXECUTED AND WHETHER IT CAN BE EXECUTED PARTIALLY OR FULLY - DEPENDS UPON DIRECTION CONTAINED IN SUCH PRELIMINARY DECREE - APPLICATION FOR EXECUTION OF PRELIMINARY DECREE - PARTLY DISPOSED OF BY ORDER DECLARING SPECIFIED PROPERTIES FALLING TO SHARES OF RESPECTIVE PARTIES - SECOND PRAYER IN SAID DARKHAST APPLICATION COULD NOT BE GRANTED SINCE FINAL DECREE WAS NOT DRAWN UP - APPLICATION MADE BY RESPONDENTS-DEFENDANTS ON 25-2-1972 WAS ONLY IN CONTINUATION OF SAID SPECIAL DARKHAST NO. 22 OF 1954 REQUESTING COURT TO GRANT THEM SECOND PRAYER WHICH PRAYER WAS ALREADY MADE IN SAID DARKHAST APPLICATION - PROCEEDINGS FOR GRANTING SEPARATE POSSESSION TO RESPONDENTS-DEFENDANTS WERE NOT TIME BARRED.
Fact of the Case:
Plaintiff filed a suit for partition of agricultural and non-agricultural property against his brothers claiming that the property was a joint family property. A preliminary decree was passed declaring the shares of the respective parties. The plaintiff filed an application for determination of their shares in the non-agricultural property by metes and bounds and for possession of such determined shares. The Court passed an order on the said application whereby defendants were given 10 khans of structure in the front portion of one house, and Rs. 50/- as compensation to be recovered from defendant. It was also declared by the said order that defendants had one-third share in the well in the property in question. Thereafter, the final decree was drawn in terms of the shares which were determined by the order dated 4-3-1955. Since the respondents-defendants did not get possession of their shares as determined by the order dated 4-3-1955 which was finally incorporated in the final decree dated 21-9-1955, the respondents-defendants made an application on 25-2-1972 for separate possession of their shares as were determined earlier. The appellant-heir of original defendant No. 1 who is in possession of the shares which had been allotted to defendants objected to this application on the ground that the said application was an application for execution of the final decree dated 21-9-1955 and the same having been time barred, no execution could proceed.
Finding of the Court:
The Court held that the application for execution was made on 13-4-1954 when the Special Darkhast No. 22 of 1954 came to be filed and the said Darkhast application was only partly disposed of on 4-3-1955 when the Court declared the specified properties falling to the shares of the respective parties. The application made by respondents-defendants on 25-2-1972 was only in continuation of the said Special Darkhast No. 22 of 1954 requesting the Court to grant them the second prayer which prayer was already made in the said darkhast application. In this view of the matter, it cannot be said that the proceedings for granting separate possession to the respondents-defendants were time barred.
Issues: Whether an application for execution of a preliminary decree can be made in any case?
Ratio Decidendi: Whether a particular application is an application for execution or not will depend upon the facts and circumstances of each case. It is also not correct to say that no application for the execution of a preliminary decree can be made in any case, because whether a preliminary decree can or cannot be executed and whether it can be executed partially or fully will again depend upon the direction contained in such preliminary decree.
Final Decision: The Court dismissed the appeal and held that the proceedings for granting separate possession to the respondents-defendants were not time barred.
SAWANT, J.:- This letters patent appeal is filed against the decision dated 2-4-1973 of the single Judge in First Appeal No. 366 of 1972.
2. The plaintiff had filed a suit being Suit No. 25 of 1947 in the Court of the Civil Judge, Senior Division, Satara for partition of agricultural and non-agricultural property against his brothers claiming that the property was a joint family property. In that suit, a preliminary decree was passed on 4-8-1949 declaring the shares of the respective parties. Against the said preliminary decree, the matter was carried in First Appeal No. 647 of 1949 which was decided on 29-7-1953, by which decision the preliminary decree was confirmed. Thereafter, the plaintiff filed an application which was styled as Special Darkhast No. 22 of 1954 on 13-4-1954 praying for two reliefs. The first relief was for determination of their shares in the non-agricultural property by metes and bounds and the second relief was for possession of such determined shares. Incidentally, it may be mentioned that the non-agricultural property involved in the suit were houses. On 4-3-1955, the Court passed an order on the said application whereby defendants Nos. 2 to 5 were given 10 khans of structure in the front portion of one house, and Rs. 50/- as compensation to be recovered from defendant No. 6. It was also declared by the said order that defendants Nos. 2 to 5 had one-third share in the well in the property in question. Thereafter on 21-9-1955, the final decree was drawn in terms of the shares which were determined by the order dated 4-3-1955, and it was also directed in the said final decree that the sale deed be drawn on a non-judicial stamp paper. Nothing happened for a long time thereafter. Since the respondents-defendants Nos. 2, 4 and 5 did not get possession of their shares as determined by the order dated 4-3-1955 which was finally incorporated in the final decree dated 21-9-1955, the respondents-defendants Nos. 2, 4 and 5 made an application on 25-2-1972 for separate possession of their shares as were determined earlier. It is this application which has given rise to this appeal. The appellant-heir of original defendant No. 1 who is in possession of the shares which had been allotted to defendants Nos. 2 to 5 objected to this application on the ground that the said application was an application for execution of the final decree dated 21-9-1955 and the same having been time barred, no execution could proceed. The learned trial Judge by his order dated 12-4-1972 held that the application for execution was in time and rejected the objection of the appellant. Against the said decision, the appellant preferred an appeal being First Appeal No. 366 of 1972 to this Court which was disposed of by the learned single Judge by his impugned order holding that the final decree dated 21-9-1955 did not declare any new rights or interests of the parties. The original application filed by the plaintiff being Special Darkhast No. 22 of 1954 on 13-4-1954 was an application far execution of the preliminary decree. The present application was not an application for execution but an application in the said darkhast proceedings and the respondents-defendants Nos. 2, 4 and 5 were entitled to continue the said darkhast proceedings initiated by the said Special Darkhast No. 22 of 1954 by the present application, and therefore the proceedings were not time barred.
3. Mr. Jahagirdar who appears for the appellant-heir of the original defendant No. 1 in this appeal, urged before us that there could not be execution proceedings before the final decree was drawn up and as such the application made by the plaintiff on 13-4-1954 was not an application for execution and it was wrongly numbered as a Special Darkhast. According to him, the application for execution could be made only after the final decree was drawn up. The first time such an application was made by respondents Nos. 1, 2 and 3 - defendants Nos. 2, 4 and 5 was on 25-2-1972 a
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