A final decree proceeding in a partition suit is not barred by limitation and can be initiated by the legal representatives of a deceased party without substitution in time, provided that the shares of the parties have been distinctly defined in the preliminary decree.

B. K. BEHERA, J.

( 1 ) THIS revision has been directed against the order passed by the learned Subordinate Judge, Anandapur, dismissing the objections raised by the petitioners in the final decree proceeding arising out of Title Suit No. 41 of 1952 in which a decree for partition on the basis of a petition of compromise had been passed allotting 7-annas share to the plaintiffs and 9-annas share to the defendants Nos. 1 to 5, the defendants Nos. 1 and 2 being the sons and the defendant No. 3 being the widow of late Dologobinda Panda and the defendants Nos. 4 and 5 being the sons of late Baidyanath Panda.

( 2 ) THE legal representatives of the deceased defendant No. 4 Gananath Panda made an application before the learned Subordinate Judge for a final decree. The plaintiffs and the defendants Nos. 1, 2 and 5 resisted it on the grounds that (a) the application was barred by limitation, (b) the legal representatives of the defendant No. 4 had no locus standi to initiate the final decree proceeding, having not been substituted in time and (c) the final decree proceeding was not maintainable. Upon hearing the learned counsel for both the sides, the learned Subordinate Judge overruled the objections.

( 3 ) MR. Mohanty, the learned counsel for the petitioners, has urged the same grounds raised before the learned Subordinate Judge and in support of the last objection viz. , that the application for final decree proceeding without modification of the original decree is not maintainable, reliance has been placed on the principles laid down in AIR 1981 Mad 307, S. V. Muthu v. Veeramma, Mr. S. Misra for the opposite parties has submitted that none of the contentions raised on behalf of the petitioners can prevail.

( 4 ) AS to the question of limitation raised by the petitioners for the initiation of a final decree proceeding after a decree has been passed, as rightly submitted by the learned counsel for the opposite parties and observed by the learned Subordinate Judge, the contention raised on behalf of the petitioners that the preliminary decree having been passed in the year 1954, the application for final decree in the year 1981 had become barred by time cannot be accepted. After the rights of the parties have finally been determined in a preliminary decree, an application by a party thereto or the legal representatives for effecting the actual partition by metes and bounds in pursuance of that decree cannot be construed to be an execution proceeding, but shall be taken to be an application in a pending suit and therefore, the question of limitation does not arise. In this connection, reference may be made to the principle laid down it (1972) 1 Cut WR 140, Chetram Agar-walla v. Budhu Mallik that a final decree proceeding is a continuation of the suit and no question of limitation arises. After the suit for partition remains pending and a preliminary decree hay been passed, the duty of the drawing up of the final decree proceeding is on the Court until a final decree is drawn up in accordance with law. It follows, as rightly noticed by the learned Subordinate Judge, that an application for a final decree in a suit for partition is not governed by any provision of the Limitation Act.

( 5 ) I would come to the next contention that the legal representatives of the deceased defendant No. 4, having not been substituted in time, have no locus standi to initiate a final decree proceeding. O. XXII, R. 4 of the Civil P. C. prescribes the procedure for bringing in the legal representatives. O. XXII, R. 12 with the Orissa High Court Amendment reads :

"nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order or to proceedings in the original Court taken after the passing of the preliminary decree where having regard to the nature of the suit, a final decree is required to be passed. "

The legal representatives of the deceased defendant No. 4 could not, therefore, be precluded from making the application on the gro