LexBIKOBA DEORA GAIKWAD & ORS. versus HIRABAI MARUTIRAO GHORGARE
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[2008) 9 S.C.R. 1038 'I A BIKOBA DEORA GAIKWAD & ORS. .. v. HIRABAI MARUTIRAO GHORGARE (Civil Appeal No.417 4 of 2008) B MAY 27, 2008 [S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.] t . Code of Civil Procedure, 1908: s.54, Or.21 r 11, Or.20 r.18 - Partition suit - Decree c passed stating that partition of land would be effected by Col- lector in execution proceedings under s. 54 - Decree not sent to Collector for partition in terms of s.54 by the trial Court - After 18 years, respondent filed application for sending said decree to Collector - Maintainability of the application chat- D lenged on the ground that same was barred by limitation - ~ Held: Use of term 'execution proceedings' in the decree is ., inadvertent and must be ignored - s. 54 confers duty upon a Court and cannot be te·rmed to be execution proceeding - Application filed before the Court to send decree and papers E to Collector to carry out partition would not be an application in execution and question of application of provisions of Limi- talion Act would not arise - Accordingly Articles 136 and 137 of Limitation Act not applicable. s. 2(2) - Decree - For construing nature of decree, one .. .. F has to look to the terms thereof rather than speculate upon the Court's intention - A decree whether preliminary or final is binding on the parties but same does not mean that all de- crees would be final decrees - Final decree come into being only when suit is finally disposed of. G In a suit for partition, a decree dated 27.6.1975 was passed declaring share of the parties. The decree stated .. that partition of land woula be effected by the Collector in r execution proceedings under s.54 CPC. The partition of H 1038 BIKOBA DEORA GAIKWAD & ORS. v. HIRABAI 1039 MARUTIRAO GHORGARE ~ ~ house property would be effected by Commissioner ap- A pointed in execution proceedings. The trial court did not send the decree to the District Collector for partition in terms of s.54, CPC. On 19.12.2002, respondents filed an application for s sending the said decree to the Collector. Appellant Nos. 2 and 3 filed objections on the premise that same was barred by limitation, which were rejected. A writ petition was also rejected by the High Court. Another application was filed in March 2005 by the C · appellants in terms of s.54, CPC whereto also an objec- tion was filed. The objection was also dismissed. A writ petition filed thereagainst been dismissed by the High Court. ~ In appeal to this Court, appellants contended that the D ,. decree dated 27.6.1975 is not a preliminary decree but in effect and substance is really a final decree and/or both and in that view of the matter the application for partition .must be held to be in the nature of an execution petition and that in any event, the said petition having been filed E after a period of 17 years was barred under Articles 136 and 137 of the Limitation Act, 1963. . Dismissing the appeal, the court HELD: 1. By the judgment and order dated 27.6.1975 F passed by the Civil Judge, on the basis whereof the de- cree was prepared, 1/3rd share of the plaintiff as well as · Defendant Nos.1 and 2 were declared. In terms of the said decree, the plaintiff was granted liberty to recover sepa- ·. rate possession of the land. It was directed that the parti- G tion of the land shall be effected by the Collector in the execution proceedings in terms of s.54 CPC. However, as regards partition of the house property, the same was to be effected by a Commissioner to be appointed in the execution proceedings. A bare perusal of the said judg- H 1040 SUPREME COURT REPORTS [2008) 9 S.C.R. -;-- ment clearly shows that the decree passed therein was a • A preliminary decree and not a final decree. In terms of the said decree, thus, in respect of agricultural land and as also the house property, the plaintiff respondent was entitled to file applications in terms of s.54 CPC as also Order XXI B thereof, respectively. The terms 'execution proceedings' appear to have been inadvertently used in the operative .,.-. portion of the judgment. The same must be ignored. The decree dated 27.6.1975 does not show that a final decree has been passed. [Paras 7, 8) [1043-G,H, 1044-A,B,C] c 1.2. A decree may denote final adjudication between the parties and against which an appeal lies, but only when a suit is completely disposed of, thereby a final decree would come into bei
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