#Partition-Suit #supremecourtofindia #limitationact1963
Ques: Whether an application filed for final decree in a partition suit after 13 years of the preliminary decree is barred by limitation?
I gave the answer that since it is a pending case and the shares of the parties have been decided, so it will not be hit by limitation. But I was not very sure about my reply.
Then I tried to find a judgment. I got a very good judgment of 2009 written by Justice R. V. RAVEENDRAN. The issue involved has been very nicely discussed in this judgment.
Before going into judgment, let us see facts:
A suit for partition and rendition of account was filed 1960 in the court at Muzaffarpur. The suit was decreed in 1964 directing a preliminary decree for partition be drawn and a final decree be drawn up through appointment of a Commissioner for actual division of the plots by metes and bounds. This was challenged in Patna High Court which was dismissed in 1974.
An application for drawing up a Final Decree was filed in 1987, i.e., after 13 years. The objection was filed on the ground of Limitation against the application on the ground that it would be governed by the residuary Article 137 of Limitation Act where it is only 3 years.
It was argued that : As the right to apply accrues on the date of the preliminary decree in 1964, or in 1974 when the appeal was dismissed by the High Court.
The objection was dismissed by the trial court holding that once the rights/shares of the plaintiff had been finally determined by a preliminary decree, there is no limitation for drawing up a final decree the application is made a pending suit.
The said order was challenged in the High Court and the same was dismissed in 2009.
SLP before SC: SLP [C] NO.17932 OF 2009
Shub Karan Buena
Vs.Sita Saran Bubna & Ors.
Let us see the provisions of the Limitation Act, 1963. Section 3 of the Act provides that every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed. This provision is made subject to sections 4 to 24 of Limitation act.
The term 'period of limitation' is defined as the period of limitation prescribed for any suit, appeal or application by the Schedule to the Act.
The Schedule does not contain any Article prescribing the limitation for an application for drawing up of a final decree.
Article 136 prescribes the limitation for execution of any decree or order of civil court as 12 years when the decree or order becomes enforceable.
Article 137 provides that for any other application for which no period of limitation is provided elsewhere, the period of limitation is 3 years which would begin to run from the time when the right to apply accrues.
But where an application does not invoke the jurisdiction of the court to grant any fresh relief based on a new cause of action, but merely requests the court to do its duty by completing the remaining part of the pending suit, there is no question of any limitation.
An application in a pending suit, which contains no fresh or new prayer for relief is not subject to the Limitation Act.
Let us see what SC told:
Once a court passes a preliminary decree, it is the duty of the court to ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree as to the manner of division.
This duty in the normal course has to be performed by the court itself as a continuation of the preliminary decree.
An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution falling under Article 136 of the Limitation Act nor an application seeking a fresh relief (falling under Article 137 of Limitation Act).
It is only a reminder to the court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion.
ONE IMPORTANT ASPECT: A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree.
The Civil Procedure Code does not contemplate filing an application for final decree. Therefore, when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing dates for further proceedings till a final decree is passed. It is the duty and function of the court.
SC held: that the application filed by the plaintiff in this case for drawing up of a final decree, was not subject to any period of limitation.
