Back
2001 Supreme(Cal) 82
High Court Of Calcutta
Subhro Kamal Mukherjee
SK.KAMIZ - Appellant
Versus
NAMUDIN BEWA - Respondent
C. O. 2190 Of 1996
Decided On : 02/16/2001
KAZI SAFIUDDIN AHMED, SUBHAS CHANDRA KARAR
There is no period of limitation for making a prayer for drawing up a final decree in a partition suit after passing of the preliminary decree.
Headnote:
PARTITION SUIT - LIMITATION FOR FINAL DECREE - NONE - ORDER 20, RULE 12, C. P. C. - NO APPLICATION REQUIRED - ARTICLE 137, LIMITATION ACT, 1963 - NOT APPLICABLE.
Fact of the Case:
The petitioner, defendant no. 56, in a suit for partition, filed a revisional application under section 115 of the Code of Civil Procedure challenging the order of the trial court appointing a Partition Commissioner and directing the plaintiffs to deposit a sum of Rs. 700/- for the Commissioner's fees. The petitioner argued that the prayer for making the preliminary decree final was barred by limitation under Article 137 of the Limitation Act, 1963, as it was not filed within three years from the date of the preliminary decree.
Finding of the Court:
The court held that there is no period of limitation for making a prayer for drawing up a final decree in a partition suit after passing of the preliminary decree. Order 20, Rule 12 of the Code of Civil Procedure does not contemplate making of any application by the party and it is the duty of the Court to pass the final decree after necessary enquiries.
Issues: Whether there is a period of limitation for making a prayer for drawing up a final decree in a partition suit after passing of the preliminary decree?
Ratio Decidendi: The court relied on the provisions of Order 20, Rule 12 and Order 20, Rule 18 (2) of the Code of Civil Procedure, which do not require any application to be made by the party for passing the final decree. The court also referred to the Full Bench decision of the Calcutta High Court in Puran Chand and Ors. v. Roy Radha kishan, which held that there is no compulsion on a person having the conduct of a pending suit to make formal applications from time to time asking the Court to proceed to judgment.
Final Decision: The court dismissed the revisional application and directed the trial court to complete the final decree proceedings as expeditiously as possible and to dispose of the suit itself finally within a period of one year from the date of communication of the order.
( 1 ) THIS revisional application under section 115 of the code of Civil Procedure is filed by defendant no. 56 in a suit far partition.
( 2 ) TITLE Suit No. 155 of 1969 was instituted by the plaintiffs/opposite parties Nos. 2 to 6 and the predecessors-in-interest of the opposite parties Nos. 1 to 7 in the court of the learned Subordinate Judge at Malda. By judgment and decree dated September 17,1970 the said Title Suit No: 155 of 1969 was decreed in preliminary. form declaring the said plaintiffs' total share of 2 annas, 11 gandas and 2 kranti in the prpperty-in-suit, the defendant Nos. 17,18,55 and 56 filed an application under Order 9, Rule 13 of the Code of civil Procedure for recalling of the decree dated september 17, 1970 and the said proceedings was registered as Misc. Case No. 62 of 1970. By an order dated November 9, 1971-the said application under Order 9, Rule 13 of the Code of Civil Procedure was dismissed on contest. The applicants In Misc. Case No. 62 of 1970 preferred an appeal before this court challenging the order of dismissal. The appeal was registered as F. M. A. No. 623 of 1973. For non-cornpliance pf an order passed by a division Bench of this court, the appeal was dismissed is lawzima, but it was restored sub-sequently on the application of the appellants filed on April 30,1994.
( 3 ) IN the meantime, on March 21,1994 the plaintiffs prayed for making the preliminary decree a final one and prayed for appointment of a survey passed Commissioner for partition. On an application dated September 14, 1994 filed by the plaintiffs, an order dated september 26,1994 was passed and the heirs and legal representatives of all the deceased defendants were substituted. Since no appointment of the Partition Commissioner was made, the plaintiffs again prayed before the court for appointment of a Partition Commissioner for effecting partition and for passing a final decree. By order No. 71 dated August 2, 1996 the learned Trial Judge allowed the prayer for appointment of Commissioner for partition arid directed the plaintiff to deposit at least a sum of Rs. 700/- by August 16,1996 and directed, further, that after deposit of the said amount, the Partition Commissioner would be appointed on the date fixed. The defendant Nos. 55 (a) to 55 (e), that is, the heirs and legal representatives of the original defendant No. 55, filed an application under section 151 of the code of Civil Procedure on August 16, 1996 for recalling of the said order No. 17 dated august 2, 1996. By an order No. 74 dated august 19, 1996 the said application was, also, rejected on contest with cost and the learned trial Judge appointed Shri Prabir Kumar choudhary as the Partiton Commissioner in pursuance to the earlier order dated August 2, 1996. The present civil order was issued on september 18,1996. On December 9,1999 a division Bench of this' court comprising of tarun Chatterjee and Prabir Kumar Samanta, JJ. , dismissed F. M. A. No. 623 of 1973 filed against the order rejecting the application under order 9, Rule 13 of the Code of Civil Procedure.
( 4 ) MR. Barun Kumar Roy choudhury, learned Advocate, for the petitioner argued that the Court below ought not to have ac-cepted the prayer of the plaintiffs for initiating proceedings for final decree after long lapse of 24 years of the passing of the preliminary decree. Mr. Roychoudhury argued that the prayer for appointment of drawing up of final decree is covered under Article 137 of the Limitation act, 1963 and as the application for drawing up of the final decree was not filed within the period of three years from the date when the right to apply accrued, the said prayer of the plaintiffs is time barred and ought not to have been entertained by the Court below. In order to substantiate his argument Mr. Roychoudhury refers to Order 34, Rule 2 (c) (ii) of the Code of civil Procedure and sought to draw an analogy relating to the suit to mortgages of the immovable propert
