VENU versus PONNUSAMY REDDIAR (DEAD) THR. LRS. & ANR.

Citation: [2017] 3 S.C.R. 933 · Decided: 27-04-2017 · Supreme Court of India · Bench: ARUN MISHRA, AMITAVA ROY · Disposal: Dismissed

Judgment (excerpt)

[2017] 3 S.C.R. 933 
VENU 
v. 
PONNuSAMY REDDIAR (DEAD) THR. LRS. & ANR. 
(Civil Appeal No. 4187 of 2-008) 
APRIL 27, 2017 
[ARUN MISHRA AND AMITAVA ROY, JJ.) 
A 
B 
Partition~- Preliminary decree for partition - Application for 
execution of preliminary decree moved thirty years after the 
preliminary decree - Application in the shape of seeking appointment 
C 
of court commissioner so as to carry out the preliminary decree -
Held: A preliminary decree for partition crystallizes the rights of 
parties for seeking partition to the extent declared, the equities 
remain to be worked out in f111al decree proceedings - Till partition 
is carried out and final decree is passed, there is no question of any 
limitatioa running against right to claim partition as per preliminary D 
decree - Even when application is filed seeking appointment of 
Commissioner, no limitation is prescribed for this purpose, as such 
it would not be barred by limitation, !is continues till preliminary 
decree culminates into final decree - In the ii1sta11t case, since the 
parties did not work _out their rights by mutual agreement, final 
E 
decree has to be' drawn in accordance with law - Limitation Act, 
1963' - Decree - Execution of 
Bhusan Chandra Monda! v. Chhabimuni Dasi AIR 1948 
Calcutta 363; Laxmi & Ors. v. A. Sankappa Alwa & 
Ors. AIR 1989 Kerala 289; Naresh Kumar & Anr. v. 
Smt. Kai/ash Devi & Ors. AIR 1999 Punjab and 
H!lryana 102; Ramanathan Chetty v. Alagappa Chetty 
AIR 1930 Mad .. 528; Faquir Chand v. Mohammad 
Akbar Khan AIR 1933 Peshawar 101 (2); Sudarsan 
Panda v. Laxmidhar Panda AIR 1983 Orissa 121; 
Varatharajulu Reddiar v. Venkatakrishna Reddiar & 
Ors. 1967 (2) Madras Law Journal 342 - affirmed. 
Case Law Reference 
AIR 1948 Calcutta 363 
affirmed 
Paras 
933 
F 
G 
H 
934 
SUPREME COURT REPORTS 
[2017] 3 S.C.R. 
A AIR 1989 Kerala 289 
affirmed 
AIR 1999 Punjab and Haryana 102 affirmed 
AIR 1930 Mad. 528. 
AIR 1933 Peshawar 101 (2) 
B AKR 1983 Orissa 121 
affirmed 
affirmed 
affirmed 
Para6 
Para 7 
Para 7 
Para 7 
Para 7 
1967 (2) Madras Law Journal 342 
affirmed 
Para 8 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4187 
of2008. 
C 
From the Judgment and Order dated 03.12.2007 of the High Comt 
of Judicature at Madras in C.R.P.(N.P.D.) No. 917 of 2003. 
V. Prabhakar, Ms. Jyoti Prashar, N. J. Ram Chandar, Mrs .. Revathy 
Raghavan, Ad vs. for the Appellant. 
V. Ramasubramanian, A. Arolkia Raj, I. Calvin Jones, Advs. for 
D the Respondents. 
The following Order of the Court was delivered: 
ORDER 
1. Only question raised in the present appeal is with respect to 
E the limitation for execution of preliminary decree for partition. In the 
instant case, the application for execution of the decree was filed after 
thirty years of the preliminary decree. That too in the shape for the 
appointment of an court Commissioner so as to carry out the preliminary 
decree which has been passed on 23.11.1959. The application for the 
F execution of the decree was filed on 3.10.1989 i.e. after thirty years. 
2. Learned counsel appearing on the appellant has submitted that 
since the application had been filed for appointment of court 
commissioner, it ought to be governed by provisions of Article 1 }7 of the 
LimitationAct, 1963. 
G 
3. On the other hand, learned counsel appearing on behalf of the 
H 
decree holder has urged that in substance an application has been filed 
for final decree proceedings and the cost of the final proceedings is paid 
then the preliminary decree is executed, thus application for execution 
of preliminary decree for partition could not be said to be barred by 
limitation. 
VEND v. PONNUSAMY REDDIAR (DEAD) THR. LRS. 
935 
4. ln our opinion a preliminary decree for partition crystallizts the A 
rights of parties for serking partition to the extent declared, the equitie& 
remain to be worked out in final decree proceedings. Till partition is 
carried out and final decree is passed, there is no. question of any limitation 
running against right to claim partition as per preliminary decree. Even 
when application is filed seeking appointment of Commissioner, no 
B 
limitation is prescribed for this purpose, as such, it would not be barred 
by limitation, !is continues till preliminary decree cnlminates in.to final 
decree. 
5. The matter is no more res integra. The Division Bench of the. 
High Court of Calcutta in In Bhusan Chandra Monda/ vs. Chhabimoni 
Dasi,[AIR 1948 CALCUTTA 363] considered the question when a C 

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