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2008 DIGILAW 261 (KAR)

Bindurao Kulkarni v. Sarojini

2008-06-02

A.S.PACHHAPURE

body2008
ORDER A. S. Pachhapure, J. The Petitioner has challenged the order dated 16.02.2006 rejecting his application filed under Section 151 of Civil Procedure Code. 2. The facts relevant for the purpose of this petition are as under: The Civil Suit No. 40/1954 instituted by Sri Rudrappa @ Appasaheb Avati seeking the relief of partition and separate possession of his shares in the agricultural lands and house sites described in the schedule ‘A’ and ‘B’ of the plaint. The suit came to be decreed on 27.10.1956 and the copy of Decree is produced at Annexure ‘B’. Aggrieved by the judgment and decree the appeals in R.A. Nos. 26/1957, 31/1957 and 45/1957 were filed and ultimately the appeals were disposed of vide order dated 04.11.1965 vide Annexure ‘C’. 3. After the death of Rudrappa the plaintiff in the said audit his legal representatives i.e., wife and children respondent Nos. 1 to 5 initiated final decree proceedings in FDP No. 9.2003 and the copy of the application has been produced at Annexure ‘F’. 4. Thereafter, that on 17.12.1980 the petitioner purchased the property bearing RS No. 1392-C/3B to an extent of 10 guntas and 15 annas under a registered sale deed from defendant No. 11 in the said suit. The petitioner was impleaded as Respondent No. 12 in the final decree proceedings. The petitioner filed I.A. No. V under the provisions of the Section 151 of Civil Procedure Code requesting the Court to decide the preliminary objection regarding maintainability of the final decree proceedings filed by respondent Nos. 1 to 5 under the provision of Order 20 Rule 18 of Civil Procedure Code alleging that, the decree dated 27.10.1956 confirmed by this Court on 04.11.1965 cannot be enforced as it is barred by limitation. In support of the said application, the petitioner sworn to an affidavit alleging the facts and contended that the final decree proceedings has been constituted in the year 2003 though the decree was passed in 04.11.1965 and the limitation provided for Execution of the decree is 12 years under Article 136 of the Limitation Act, 1963, and the proceedings initiated by respondent Nos. 1 to 5 are barred by time. 1 to 5 are barred by time. It was also his contention that as the proceedings are not maintainable there is no question of appointing a Commissioner for affecting the division and in the circumstances requested the Trial Court to decide on the question of maintainability and as the Trial Court rejected the request by dismissing the application he has approached this Court by way of this petition under Articles 226 of the Indian Constitution. 5. I have heard the learned Counsel for the petitioner and also the respondents. 6. It is the contention of the learned Counsel for the petitioner that the decree which came to be passed on 27.10.1956 vide Annexure ‘B’ is in the nature of final decree and that it is not at all a preliminary decree and therefore, the submits that the final decree proceedings initiated by respondent Nos. 1 to 5 in the year 2003 are not within a period of 12 years as contemplated under Articles 136 of the Limitation Act. It is also his submission that the decree referred to supra is not a preliminary decree at all and as there is a direction in the decree itself to file the Execution proceedings, and the respondent Nos. 1 to 5 cannot initiate the proceedings under Order 20 Rule 18 of Civil Procedure Code and therefore, he submits that the initiation of the proceedings itself is illegal. It is also his submission that there was a direction in the decree to effect the partition of the buildings and sites by appointing a Commissioner in the Execution proceedings, and he contends that respondent Nos. 1 to 5 cannot approach under the provisions of Order 20 Rule 18 of Civil Procedure Code and as the Execution itself is not within 12 years and the request of the respondent Nos. 1 to 5 cannot be granted. The learned Counsel also submitted that in between 1956 to 2003 much water has flown and as the petitioner invested lot of money by putting up construction the grant of share in the property would cause great injustice. 7. 1 to 5 cannot be granted. The learned Counsel also submitted that in between 1956 to 2003 much water has flown and as the petitioner invested lot of money by putting up construction the grant of share in the property would cause great injustice. 7. Learned Counsel for the respondents submitted that the decree dated 27.10.1956 which was confirmed in the year 1965 is a preliminary decree and the decree holders have to initiate the proceedings under Order 20 Rule 18 of Civil Procedure Code and as there is no limitation for filing the application under Order 20 Rule 18 of C.P.C. He submits that there is no impediment in law for initiating the proceedings under Order 20 Rule 18 of C.P.C. 8. As could be seen from the decree in Special Civil Suit No. 40/1954 produced at Annexure ‘B’ as regards the suit property which was a site, the Court has given the following directions: “The partition of the buildings and sites shall be made by the appointment of a Commissioner in execution proceedings”. Further more, in the appeal against the decree of Trial Court his Court granted the decree in RA Nos. 26/1957, 31/1957 and 45/1957 dated 4th November, 1965 and as regards the suit property purchased by the petitioner from defendant No. 11, it is directed as follows: “And that if defendant-11 is found to be in possession of a sufficiently large area that can be partitioned conveniently, the plaintiff shall get one third share partitioned in the land bearing R.S. No. 1392/C-3B and that if, the plot is not large enough to be partitionerd, defendant-11 shall pay to the plaintiff a sum of Rs.100/-”. So, in pursuance of the direction issued by this Court in the Regular Appeals, it is relevant to note that the respondent Nos. 1 to 5 were granted one third share in all the properties and the property purchased by the petitioner bearing R.S. No. 1392-C/3B. A specific direction was given for affecting the division depending upon the convenience and if the partition was not feasible the plaintiff was entitled to a sum of Rs.100/-. Referring to the portions stated supra, the Learned Cousel for the petitioner contends that these directions of the Trial Court and this Court will have to be carried only in the Execution proceedings and as the respondent Nos. Referring to the portions stated supra, the Learned Cousel for the petitioner contends that these directions of the Trial Court and this Court will have to be carried only in the Execution proceedings and as the respondent Nos. 1 to 5 have not filed the petition within 12 years from the dated of decree, he submits that the application is barred in law. He placed reliance on the decision of this Court reported in ILR 2004 Kar 655 with reference to an order passed in the final decree proceedings directing the partition by metes and bounds, in which the partition by metes and bounds, in which the Court held that an appeal to be filed against such order under the provisions of Section 96 of the Civil Procedure Code. He also relied upon a decision reported in 1971(1) Mys.L.J. 169 wherein there was a decree for possession on payment of a sum of Rs.1,200/- and this Court held that, the Execution Petition has to be filed within a period of 12 years in view of the provisions of Article 182 of the Limitation Act 9 of 1908 equivalent to Article 136 of the Limitation Act, 1963. He submits that when there was a specific direction by the Court to appoint a Commissioner in this Execution Proceedings, the respondent Nos. 1 to 5 have to file the Execution Proceedings as per the direction in the decree and cannot file a petition under the provisions of Order 20 Rule 18 of C.P.C. by way of final decree proceedings. 9. Perusal of the facts in the decision referred to supra have no application with the facts on hand. It is relevant to note that in the decision referred to above, the suit came to be instituted for possession and the decree was granted subject to the condition of paying the amount of Rs. 1,200/- and in pursuance of the said decree, the Execution proceedings were initiated and in those circumstances, it was held by this Court that the execution petition has to be filed within a period of 12 years from the date of decree. As there was no partition decree the facts in the said case do not apply to the case on hand wherein here is a decree for partition and the respondent Nos. 1 to 5 were awarded 1/3rd share in the suit property. 10. As there was no partition decree the facts in the said case do not apply to the case on hand wherein here is a decree for partition and the respondent Nos. 1 to 5 were awarded 1/3rd share in the suit property. 10. The better appreciate the submission made by the learned Counsel for the petitioner, I think, it is relevant for met to refer to the provisions of Order 20, Rule 18 of C.P.C: Order XX Rule 18. Decree in suit for partition of property or separate possession of a share therein: Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,- (1) xxxx xxxx xxxx (2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of a several parties interested in the property and giving such further directions as may be required”. In view of the above said provisions, it is relevant to note that it applies to the decrees in the partition suit. When a decree relates to immovable property and the division of the property cannot be made without further inquiry, the sub-clause provides that the Court has to pass a preliminary decree declaring the rights of the parties interested in the property and giving such further directions as may be required. It is relevant to note that the deceased Rudrappa had filed a suit for partition and obtained decree of 1/3rd share in the suit property and there was a specific direction by this Court that the division has to be effected by appointing a Commissioner and find out the feasibility as regards the partition and in case if it is not feasible the question regarding the payment of Rs. 100/- would arise. So, if the direction issued in the decree is taken into consideration in the context of Order 20 Rule 18(2) of C.P.C. the share of the deceased Rudrappa was declared and there was a specific direction for effecting the division, and therefore it has to be held that the decree which came to be passed is s preliminary decree as provided under the provisions of Order 20 Rule 18 of C.P.C. 11. It is not in dispute that there is no limitation as regards the initiation of the final decree proceedings. On this aspect of that mater, the learned Counsel for the respondents placed reliance on the decision of the Apex Court reported in 2007 AIR SCW 1011. It has been held that there is no limitation as far as the initiation of the final decree proceedings under the provisions of Order 20 Rule 18 of C.P.C. It is also held by the Apex Court that a preliminary decree declares rights and liabilities of the parties and that there can be many preliminary decrees or a decree may be partly preliminary and partly final and that the final decree proceedings may be initiated at any point of time. In view of this dictum laid down by the Apex Court an application under the provisions of Order 20 Rule 18 of C.P.C. can be filed at any time after the preliminary decree is passed. It cannot be forgotten that when the law provides no limitation, the Court cannot give any such directions substituting any limitation for enforcement of the decree or order. If merely because that the respondent Nos. 1 to 5 initiated the proceedings after about 40 years of getting a preliminary decree in their favour unless there is a specific provision which prohibits them to file final decree proceedings against a person, the Court cannot on its own restrict the right vested in a party to file an application for final decree proceedings at any point of time and the provision under Article 136 of the Limitation Act, 1963 provides the limitation of 12 years in case of any decrees other than a preliminary decree. The provision is not applicable for the initiation of final decree proceedings. The mere fact that the petitioner has put up construction or invested huge amount is not itself sufficient ground to hold that the proceedings initiated by respondent Nos. 1 to 5 under Order 20 Rule 18 of C.P.C. are not maintainable or barred by time. 12. The provision is not applicable for the initiation of final decree proceedings. The mere fact that the petitioner has put up construction or invested huge amount is not itself sufficient ground to hold that the proceedings initiated by respondent Nos. 1 to 5 under Order 20 Rule 18 of C.P.C. are not maintainable or barred by time. 12. Apart from this, even though the decree in O.S. No. 40/1954 gives a direction for filing the execution proceedings, I am of the considered opinion that the execution proceedings referred to in are to mean the proceedings under Order 20 Rule 18 of C.P.C. by way of final decree proceedings seeking the enforcement of the preliminary decree granted and by any interpretation of the decree, it cannot be said that the decree obtained by respondent Nos. 1 to 5 was a final decree as the shares of plaintiff, whose legal representatives are respondent Nos. 1 to 5 were declared in the suit and there was a further direction for effecting the division by appointment of a Commissioner. The decree in question which was further confirmed with a specific directions of the Court in the Regular Appeal is a preliminary decree and is not a final decree. 13. Therefore, as the decree is a preliminary decree, there is no limitation provided for filing an application under Order 20 Rule 18 of C.P.C. and the trial Court has taken into consideration all the facts and circumstances and has come to a right conclusion in holding that there is no limitation for initiation of final decree proceedings. 14. In these circumstances, I do not find any merit in the writ petition and there are no grounds to warrant interference. Therefore, the writ petition is dismissed.