LexSHUB KARAN BUBNA @ SHUB KARAN PRASAD versus SITA SARAN BUBNA & ORS.
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[2009] 14 (ADDL.) S.C.R. 40 A SHUB KARAN BUBNA @ SHUB KARAN PRASAD -1 BUB NA v. SITA SARAN BUBNA & ORS. (Special Leave Petition (C) No.17932 of 2009) B AUGUST 21, 2009 [R.V. RAVEENDRAN AND B. SUDERSHAN REDDY, JJ.] CODE OF CIVIL PROCEDURE, 1908:. c ss.2(20) and 54, 0. 20 r. 18, 0. 26 r. 13 - Partition suit - Preliminary decree passed - Application for final decree - ..... Resisted on the ground of limitation - HELD: Where an application does not invoke the jurisdiction of court to grant .... ;.-- .D any fresh relief based on a new cause of action, but merely ... reminds or requests the· court to do its duty by completing the remaining part of the pending suit, there is no question of any limitation - Such an application is not one to which Limitation Act would apply - As declaration of rights or shares is only E the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit - Suit continues to be pending until partition, that is, division by metes and )' bounds, takes place by passing a final decree - An application requesting the court to take necessary steps to F 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 Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act) - Code does not contemplate filing of an application for final decree - Therefore, when a preliminary decree is passed G in a partition suit, the proceedings should be continued by fixing·dates for further proceedings till a final decree is passed 'f- -It is the duty and function of the court which in the normal course has to be performed by the court itself as a continuation of the preliminary decree - Performance of such H 40 SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA 41 v. SITA SARAN BUBNA function does not require a reminder or nudge from the litigant A - The mindset should be to expedite the process of dispute resolution - The application filed by plaintiff for drawing up of a final decree was rightly held to be not subject to any period of limitation - Court concerned would expedite the final decree proceedings - Limitation. 8 La/ta Prasad v. Brahma Din AIR 1929 Oudh 456; Ramabai Govind v. Anant Daji AIR 1945 Born. 338; Abdul Kareem Sab v. Gowlivada S. Silar Saheb AIR 1957 AP 40; A. Manjundappa v. Sonnappa & Ors. AIR 1965 Kar. 73; c Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors. AIR 1983 Orissa 121; Laxmi v. A.Sankappa Alwa AIR 1989 Ker. 289; --', Phoolchand vs. Gopal Lal AIR 1967 SC 1470; Hasham -:::r Abbas Sawad v. Usman Abbas Sayyad & Ors. 2007 (2) SCC -( 355; and Bikoba Deora Gaikwad v. Hirabai Marutirao .... Ghorgare 2008 (8) sec 198, relied on D DECREE - Preliminary decree and final decree - Concept of, in the context of partition suits and mortgage suits - HELD: There is a fundamental difference between mortgage suits and partition suits - In a preliminary decree in a E mortgage suit (whether a decree for foreclosure under r.2 or -\ a·decree for sale under r.4 of 0 34 CPC), the amount due is· .. determined and declared and the time within which the amount has to be paid is also fixed and the consequence of non- payment within the time stipulated is also specified - A F preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in the event of non-payment of the amount- When the amount is not paid, plaintiff gets a right to seek a final decree for foreclosure or for sale - On the other hand, in a partition suit the preliminary G decree only decides a part of the suit and, therefore, an application for passing a final decree is only an application in a pending suit, seeking further progress - In partition suits, - there can be a preliminary decree followed by a final decree, . or there can be a decree which is a combination of H 42 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. A preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court - In fact several applications for final decree are permissible in a partition suit - The application for final decree as and when made is considered to be an application in a pending B suit for granting the relief of division by metes and bounds - Therefore, the concept of final decree in a partition
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