The court clarified that final decree proceedings in partition suits are the duty of the court and do not depend on a party's application, and that the Limitation Act does not apply to such proceedings.

1. This petition under Article 227 of the Constitution of India is directed against the order dated 12.03.2014 passed by the learned Civil Judge (Sr. Div), Court No.2, West Tripura, Agartala whereby he allowed the application filed by the plaintiff and appointed survey commissioner in the matter.

2. Briefly stated the facts of the case are that the plaintiff Jitendra Chandra Deb filed a suit for partition of the suit land mentioned in the schedule of the suit. This suit was contested and by judgment dated 12.03.1998, the suit of the plaintiff was decreed and it was held that the plaintiff and defendants 1 to 3 have 1/5 share of the suit property and defendants 4 to 11 jointly owned the remaining 1/5 share in the suit property. Thereafter, the plaintiff filed an application for preparation of final decree. This application was dismissed as not pressed on 21.08.2000. The order reads as follows:-

“Plaintiff by a petition prays for time on the ground stated in the petition.

Ld. Advocate for the Defdt. is present.

Heard and considered.

Time prayer is allowed.

Fix for payment of S/C fees by pltf. & direction.

Later on Ld advocate for the pltf. Appeared & submits that he does not press for the petition for final decree as pltf. did not deposit S/C fee.

Considered. As Pltf. Is not interested to proceed with petition for final decree.

Petition is dismissed.”

3. It appears thereafter, that the plaintiff filed an application under Order XXVI Rule 13 for appointment of survey commissioner and this application was filed on 26.07.2012. This application was contested and the main ground raised was that since the earlier execution petition had been dismissed as not pressed, the second application was not maintainable. It would be pertinent to mention that in the second application, the plaintiff did not make any reference to the fact that he had earlier filed an execution petition which has been dismissed as not pressed. The learned Court below held that withdrawal of the earlier execution petition would not in any manner act as res judicata and therefore, appointed a survey commissioner. This order is under challenge.

4. Reference may be made to the judgment of the Apex Court in Shub Karan Bubna alias Shub Karan Prasad Bubna vs. Sita Saran Bubna and others : (2009) 9 SCC 689, wherein the Apex Court has passed a very erudite judgment with regard to partition decrees and their implementation. The relevant portion of the judgment reads as follows:-

“7. In a suit for partition or separation of a share, the prayer is not only for declaration of the plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues:

(i) whether the person seeking division has a share or interest in the suit property/properties;

(ii) whether he is entitled to the relief of division and separate possession; and

(iii) how and in what manner, the property/properties should be divided by metes and bounds?

In a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as “decree” under Order 20

Rule 18(1) and termed as “preliminary decree” under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2).

8. The question is whether the provisions of Limitation Act are inapplicable to an application for drawing up a final decree.

9. Rule 18 of Order 20 of the Code of Civil Procedure (“the Code”, for short) deals with decrees in suits for partit