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2001 DIGILAW 79 (CAL)

SK. KAMIZ v. NAMUDIN BEWA

2001-02-16

SUBHRO KAMAL MUKHERJEE

body2001
SUBHRO KAMAL MUKHERJEE, J. ( 1 ) THIS revisional application under section 115 of the code of Civil Procedure is filed by defendant no. 56 in a suit far partition. ( 2 ) TITLE Suit No. 155 of 1969 was instituted by the plaintiffs/opposite parties Nos. 2 to 6 and the predecessors-in-interest of the opposite parties Nos. 1 to 7 in the court of the learned Subordinate Judge at Malda. By judgment and decree dated September 17,1970 the said Title Suit No: 155 of 1969 was decreed in preliminary. form declaring the said plaintiffs' total share of 2 annas, 11 gandas and 2 kranti in the prpperty-in-suit, the defendant Nos. 17,18,55 and 56 filed an application under Order 9, Rule 13 of the Code of civil Procedure for recalling of the decree dated september 17, 1970 and the said proceedings was registered as Misc. Case No. 62 of 1970. By an order dated November 9, 1971-the said application under Order 9, Rule 13 of the Code of Civil Procedure was dismissed on contest. The applicants In Misc. Case No. 62 of 1970 preferred an appeal before this court challenging the order of dismissal. The appeal was registered as F. M. A. No. 623 of 1973. For non-cornpliance pf an order passed by a division Bench of this court, the appeal was dismissed is lawzima, but it was restored sub-sequently on the application of the appellants filed on April 30,1994. ( 3 ) IN the meantime, on March 21,1994 the plaintiffs prayed for making the preliminary decree a final one and prayed for appointment of a survey passed Commissioner for partition. On an application dated September 14, 1994 filed by the plaintiffs, an order dated september 26,1994 was passed and the heirs and legal representatives of all the deceased defendants were substituted. Since no appointment of the Partition Commissioner was made, the plaintiffs again prayed before the court for appointment of a Partition Commissioner for effecting partition and for passing a final decree. By order No. 71 dated August 2, 1996 the learned Trial Judge allowed the prayer for appointment of Commissioner for partition arid directed the plaintiff to deposit at least a sum of Rs. 700/- by August 16,1996 and directed, further, that after deposit of the said amount, the Partition Commissioner would be appointed on the date fixed. The defendant Nos. By order No. 71 dated August 2, 1996 the learned Trial Judge allowed the prayer for appointment of Commissioner for partition arid directed the plaintiff to deposit at least a sum of Rs. 700/- by August 16,1996 and directed, further, that after deposit of the said amount, the Partition Commissioner would be appointed on the date fixed. The defendant Nos. 55 (a) to 55 (e), that is, the heirs and legal representatives of the original defendant No. 55, filed an application under section 151 of the code of Civil Procedure on August 16, 1996 for recalling of the said order No. 17 dated august 2, 1996. By an order No. 74 dated august 19, 1996 the said application was, also, rejected on contest with cost and the learned trial Judge appointed Shri Prabir Kumar choudhary as the Partiton Commissioner in pursuance to the earlier order dated August 2, 1996. The present civil order was issued on september 18,1996. On December 9,1999 a division Bench of this' court comprising of tarun Chatterjee and Prabir Kumar Samanta, JJ. , dismissed F. M. A. No. 623 of 1973 filed against the order rejecting the application under order 9, Rule 13 of the Code of Civil Procedure. ( 4 ) MR. Barun Kumar Roy choudhury, learned Advocate, for the petitioner argued that the Court below ought not to have ac-cepted the prayer of the plaintiffs for initiating proceedings for final decree after long lapse of 24 years of the passing of the preliminary decree. Mr. Roychoudhury argued that the prayer for appointment of drawing up of final decree is covered under Article 137 of the Limitation act, 1963 and as the application for drawing up of the final decree was not filed within the period of three years from the date when the right to apply accrued, the said prayer of the plaintiffs is time barred and ought not to have been entertained by the Court below. In order to substantiate his argument Mr. Roychoudhury refers to Order 34, Rule 2 (c) (ii) of the Code of civil Procedure and sought to draw an analogy relating to the suit to mortgages of the immovable property and submitted that the limitation for making an application for drawirg up of a final decree even in partition suit, is, also three years under Article 137 inasmuch as, according to Mr. Roychoudhury, for such an application no period of limitation is provided in the Limitation Act, 1963. Mr. Roychoudhury argued that although F. M. A. No. 623 of 1973 was pending in this Court, but as no ad-interim order of stay was granted -in the proceedings under Order 9, Rule 13 of the Code of Civil Procedure, the period of limitation would not be extended. Mr. Roychoudhury referred to the decision of the kerala State Electricity Board v. T. P. Kunhallunmma, in order to draw my attention to the fact that the Apex Court noticed the distinctions between Article 181 of the limitation Act, 1908 and Article 137 of the limitation Act, 1963 and held that Article 137 applies to any petition or application filed under any Act. Mr. Roychoudhury, further, cited the case of Major (Retd) Inder Singh Refchl v. Delhi Development Authority, and draws my attention to the fact that in the decision of major (Retd) Inder Singh Rekhi (supra) the supreme Court followed the decision in the case of Kerala State Electricity Board (supra)and held that. Article 137 applies even in respect of an application under section 20 of the Arbitration Act, 1940. Mr. Roychoudhury referred to the case of Monotosh Kumar Mitra (dead) by LRs and Ors. v. Amarendra Nath shaw (dead) and Ors. , where the Apex Court held that Article 137 applies in respect of an application for final decree on default of payment in suit for foreclosure/sale of mortgaged property. The case of Raghunath and Sons private Ltd. v. Vijay Kumar Goenka and Anr, was cited where this Court held that Article 137 applie for making an application for drawing up of final decree in the mortgage suit. None of the said decisions cited by Mr. Roychoudhury are of help in deciding the matter in issue in the present revisional application, that is, whether there is any period of limitation in making a pryer for drawing up final decree in a suit partition as these decisions do not relate to partition suit. On the contrary," in the case of Raghunath and Sons private Limited (supra) this Court noticed that in respect of suits for redemption of mortgage no period of limitation could be attracted after a preliminary decree is passed. ( 5 ) WHILE supporting the orders impugned mr. Kazi Safiuddin Ahmed cited the case of sital Prashad and Anr. v. Kishorilal5. On the contrary," in the case of Raghunath and Sons private Limited (supra) this Court noticed that in respect of suits for redemption of mortgage no period of limitation could be attracted after a preliminary decree is passed. ( 5 ) WHILE supporting the orders impugned mr. Kazi Safiuddin Ahmed cited the case of sital Prashad and Anr. v. Kishorilal5. In the aforesaid decision the Apex Court settled the effect of appellate decree on final decree when former reverses, confirms and varies preliminary decree in mortgage suits. The said decision is, also of no help to decide the point involved in the revisional application. ( 6 ) IN order to appreciate the rival contentions of the parties, I have considered the scope of Order 20, Rule 12 of the Code of civil Procedure and Order 20, Rule 18 (2) of the Code of Civil Procedure. My reading of the aforesaid provisions of the Code of Civil procedure is that there is infact no limitation for making a prayer to draw final decree in a partition suit after passing of the preliminary decree inasmuch as the Rules concerned do not contemplate making of any application by the party and as it is the duty of the Court to pass the final decree after necessary enquiri. es. The distinction between Article 181 of the Limitation Act, 1908 and Article 137 of the Limitation Act, 1963 is that while Article 181 of the Limitation Act, 1908 contemplates that the operation of the said Article was restricted to the applications under the Code of Civil Procedure on the principles of ejusdem generies. Article 137 of the Limitation Act, 1963 indicates that the said Article is not confined only in respect of applications under the Code of civil Procedure, but any other application under any other Act will attract Article 137. The only limitation is that it has to be an application to a Court. Since no application is needed to pass the final decree after necessary enquiries after the preliminary decree, the Article 137 of the limitation Act, 1963 has no application. ( 7 ) IN this connection reference may be made to a Full Bench decision of this court in the case of Puran Chand and Ors. v. Roy Radha kishan. Since no application is needed to pass the final decree after necessary enquiries after the preliminary decree, the Article 137 of the limitation Act, 1963 has no application. ( 7 ) IN this connection reference may be made to a Full Bench decision of this court in the case of Puran Chand and Ors. v. Roy Radha kishan. The appeal concerned arose out of an order of the learned District Judge of Patna who had dismissed the application of the decree holders for realisation of mesne pro/ft on the ground that the claim was barred by limitation. The Full Bench noticed that "there are numerous sections in the Code which direct that for certain relief, an application must be made; but there is nothing in the Code compelling a person having the conduct of a pending suit to make formal applications from time to time asking the Court to proceed to judgment. The form of procedure and the manner of dealing with suits is amply provided for by the Code. In the present case, so far as we can see, the Court, was bound, on the oral applications of the appellants pleader, indeed without any such application at all, to fix a date for first hearing of the enquiry, and after hearing the parties and fixing such issue as might be necessary for the disposal of the subject matter in dispute, to proceed with it as if it were dealing with a case based on a plaint. " A single Bench of this Court in the case of Indra narayan Bera v. Narendranath Patra and anr. , held that no period of limitation has been prescribed for an application under Order 20. Rule 12 of the Code of Civil Procedure and as such Article 137 of the Limitation Act, 1963 has no application. It was held, further that a preliminary decree does not dispose of a suit until a final decree is passed: therefore, no period of limitation has been prescribed for making an application under Order 20,. Rule 12 of Code of Civil Procedure. A Single Judge of Orissa High Court in the case of Sudarsan panda and Ors. v. Laxmidhar Panda and ors. Rule 12 of Code of Civil Procedure. A Single Judge of Orissa High Court in the case of Sudarsan panda and Ors. v. Laxmidhar Panda and ors. , considered the provisions of Order 20, rule 18 of the Code of Civil Procedure and held that an application for drawing up final decree in a partition suit is an application in a pending suit and not an execution proceeding and the said application for drawing up final decree is not governed by any provision of the limitation Act. 1963. ( 8 ) FINALLY, a Division Bench of this Court in the case of Bhusan Chandra Mondal v. Chhabimone Dasi, held:-"artide 181, is the residuary Article relating to applications. In a mortgage suit it has been held that the application for a final decree has to be made within 3 years by reason of Article 181, limitation Act. But those decisions are not helpful because Order 34. Rule 4. Civil procedure Code, expressly requires the mortgagee to make an application for a final decree, either for foreclosure or for sale. In a suit for partition and/or accounts a party need not make an application for making the decree final. After the preliminary decree in such a suit has been passed it is the usual practice for the plaintiff to make an application for the appointment of the commissioner but there is no legal bar in the Court appointing the Commissioner suo motu and asking the plaintiff to deposit the Commissioner's fees in court. If he does not deposit the. fees any other party to the suit can do so and take upon himself the carriage of the proceedings. If the plaintiff and none of the other parties make the deposit the fact that the Court would not be able to dismiss the suit is, however, another matter. " ( 9 ) IN view of my aforesaid discussions and the decisions referred to herein-above, I am of the opinion that this revisional application has no merit and is, therefore, liable to be dismissed. ( 10 ) THE learned Trial Judge is directed to complete the final decree proceedings as ex-peditiously as possible. Considering the age of the suit, I direct him to dispose of the suit itself finally within a period of one year from the date of communication of this order to him. There will be no order as to costs. ( 10 ) THE learned Trial Judge is directed to complete the final decree proceedings as ex-peditiously as possible. Considering the age of the suit, I direct him to dispose of the suit itself finally within a period of one year from the date of communication of this order to him. There will be no order as to costs. Xerox certified copy, if applied for, be supplied to the parties on urgent basis. ( 11 ) MR. Karar on behalf of the petitioner prays for stay of the operation of the order. The prayer is considered and rejected. Revision dismissed.