1. Heard.

The applicant in this revision application challenging the order dated 10.10.2005 passed by Seventh Civil Judge, Class I, Gwalior in Case No. 188-A/77 2003 E.D.

2. Brief facts of the case are that the non-applicant No.1 filed a suit for partition against the applicant and non-applicants No.2 to 4. The trial Court vide judgment and decree dated 2.1.1981 passed a preliminary decree for partition in Civil Suit No. 188-A/77. On 3.12.2003, non-applicant No.1 filed an application before the trial Court for execution of preliminary decree. It is averred in the application that earlier an application was filed for preparation of final decree. The record of the trial Court was misplaced and the said application was dismissed in 1997 on account of non appearance of the non-applicant No. 1 and an application to restore the same was also filed but the Court record has also been destroyed in the incident of fine. The non-applicant filed its reply and opposed the application and prays for dismissal of the application on the ground that the same is barred by time under Article 136 of the Limitation Act, 1963. The applicant also raised an objection that execution of preliminary decree is not maintainable, It is further averred that in the year 1997, property in question had been divided by meats and bound between the parties in family settlement arrived in the year 1997 and the same had been acted upon and Late Shri Bhaskar Vyas and non-applicant No.4 Purshottam Vyas relinquished their shares in favour of the applicant. The trial Court by impugned order rejected the objection of the applicant by holding that application is not barred by time and appointed Shri Naqvi as a Partition Commissioner as per preliminary decree dated 2.1.1981.

3. The question involved in this revision application is when a decree for partition becomes enforceable within the meaning of Article 136 of the Limitation Act, 1963 so that the period of limitation prescribed therefor would begin to run thereunder. Article 136 of the Limitation Act provides that "for the execution of any decree (other than a decree granting mandatory injunction)", the period of limitation is 12 years and that the time from which that period would begin to run is "when the decree becomes enforceable".

4. The Court passes a preliminary decree declaring the rights of the several parties, entrusted in the property, giving further directions under Order 20 Rule 18 of CPC as may be required. Here in the present case, the preliminary decree was passed on 2.1.1981 with a direction to the decree-holder that properties be divided by meats and bound by a Partition Commissioner and, thereafter, 1I3rd share of the decree holder be given to him. Thus final decree is to be passed after the properties are divided by meats and bound by a Partition Commissioner and the Court on considering such report accept, it and passes a decree thereon.

5. In the case of S.K. Kamiz v. Namudin Pewa [2001 (3) CCC 585 (Calcutta)] and in the case of Murugan v. Chidambaram Pillai and others [AIR 1991 Madras 307] it has been held that in an application for making the preliminary decree final is in a pending suit the Limitation Act does not apply and the petition may be filed at any time.

In the case of A Manjundappa v. Sonnappa and others [AIR 1965 Mysore 73] the Mysore High Court has held that a petition for transmission of record of preliminary partition decree to Deputy Commissioner is not petition for execution of a decree because there is no executable decree. It is a petition in a pending suit praying the Court to take the necessary steps for drawing up of a final decree after effecting a division in terms of the preliminary decree. The duty of drawing a final decree is that of the Court and neither the Code of Civil Procedure nor the Limitation Act specifically provides for any application being made for drawing up a final decree. Such a petition is not, therefore, barred by limitation.

6. A decree for partition is