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2018 DIGILAW 2825 (BOM)

Shriram v. Hasinabai Piromohammad Ansari

2018-11-30

Z.A.HAQ

body2018
JUDGMENT : Z.A. Haq, J. 1. None appears for the respondent No.2, though served. Heard Ms. K. Satpute, Advocate for the petitioner and Ms. A. Wanjari, Advocate holding for Shri M. Anilkumar, Advocate for the respondent No.1. 2. RULE. Rule made returnable forthwith. 3. The original decree holder had filed the final decree proceedings vide F.D.B. No. 01/1999. These proceedings were dismissed for want of prosecution, by the order dated 19/03/2012. The decree holder filed an application praying for restoration of the proceedings. This application is dismissed by the impugned order. 4. Relying on the judgment given in the case of Venu vs. Ponnusamy Reddiar (Dead) Thr. Lrs & Anr. the learned advocate for the petitioner has submitted that the preliminary decree does not completely dispose the civil suit and the suit continues till the final decree is passed, and therefore there is no need to file an application and apply for the final decree proceedings by the litigants and it is an obligation on the Court to draw up the final decree. The relevant considerations are in para nos. 6 and 7 of the judgment which read as follows:- "6. Similar is the view adopted by a Single judge of the High Court of Kerala in Laxmi vs. A. Sankappa Alwa, AIR 1989 Kerala 289 the logic given by the High Court of Kerala that the preliminary decree does not completely dispose of the suit. The suit continues till the final decree is passed. Suit is pending till the passing of the final decree. There is no necessity of filing an application to apply for the final decree proceedings by litigants, then there is an obligation on the court for drawing up a final decree. The court had held thus: "15. I turn to consider the question of obligation of the Court and the parties after a preliminary decree is given in a partition suit. I do not propose to discuss that matter elaborately. In my view a preliminary decree conclusively determines the rights and liabilities of the parties with regard to all or some of the matters in controversy in the suit although it does not completely dispose of the suit. Further proceedings await the suit to work out and adjust the rights of the parties. The Court cannot dismiss a suit for default when once a preliminary decree is passed in a partition suit. Further proceedings await the suit to work out and adjust the rights of the parties. The Court cannot dismiss a suit for default when once a preliminary decree is passed in a partition suit. The parties to the suit have acquired rights or incurred liabilities under the decree. They are final, unless or until the decree is varied or set aside. The law being so, if the plaintiff does not take any steps after a preliminary decree is passed, the Court should adjourn the proceedings sine die with liberty to the parties concerned to end the torpor and suspended animation of the suit by activising it by taking appropriate proceedings. In Thomas v. Bhavani Amma, 1969 Ker LT 729, Krishna Iyer, J. observed : "It is correct law that in a suit for partition, after the passing of a preliminary decree it is the duty of the Court to pass a final decree and what is called an application for final decree is but a reminder to the Court of its duty. If so, it is the Court's duty to give notice to the parties." 19. No rule provides for the filing of an application by the party for passing a final decree. The preliminary decree will not dispose of the suit. The suit continues. The position being so, it is more appropriate for the Court to adjourn the case sine die. It is difficult for me to say that there is an obligation on the part of the Court to "pass the final decree after necessary enquiries" as observed by Paripoornan, J. 1985 Ker LT 940 (Sreedevi Amma v. Nani Amma). 20. I am of the opinion that an application for drawing up a final decree in a partition suit is in no way an application contemplated under the Limitation Act. It is a reminder to the Court that something which the Court is obliged to do has not been done and so, such an application, is not governed by any provision of the Limitation Act. When once the rights of the parties have been finally determined in a preliminary decree, an application by a party thereto or the legal representatives, for effecting the actual partition in accordance with the directions contained in the preliminary decree can never be construed to be an application within the meaning of the Limitation Act. When once the rights of the parties have been finally determined in a preliminary decree, an application by a party thereto or the legal representatives, for effecting the actual partition in accordance with the directions contained in the preliminary decree can never be construed to be an application within the meaning of the Limitation Act. It shall be taken to be an application in a pending suit and therefore the question of limitation does not arise. 7. Similar is the view taken by the Single Bench of High Court of Punjab & Haryana in Naresh Kumar vs. Smt. Kailash Devi, AIR 1999 P & H 102 in which reliance has been placed upon the decision of High Court of Madras in Ramanathan Chetty v. Alagappa Chetty, AIR 1930 Mad. 528 in which it was held that until final decree is passed in a partition suit, limitation will not come into play because the suit continues, till final decree is passed. Reliance is also placed on a decision of High Court of Peshawar in Faqir Chand v. Mohammad Akbar Khan [AIR 1933 Peshawar 101(2)], in which it has been observed that there is no obligation of a litigant to apply for final decree proceedings. As such there is no question of application of the limitation. Another decision of the High Court of Orissa had been referred in Sudarsan Panda vs. Laxmidhar Panda, AIR 1983 Orissa 121 in which also similar view had been taken." 5. The learned advocate for the respondent No. 1 has submitted that the application praying for restoration of M.J.C. No. 04/2015 i.e. the application for restoration of the final decree proceedings was filed after 10 months and then that application was also dismissed, and then second application praying for restoration of the final decree proceedings was filed on which the impugned order is passed. The learned advocate for the respondent No. 1 tried to distinguish the above referred judgment on facts. 6. In my view, the proposition laid down in the above referred judgment covers the point. The proceedings of the civil suit continue to pend till the final decree is drawn and it is not necessary for the litigant to apply for drawing up the final decree and it is an obligation on the Court to draw the final decree. 6. In my view, the proposition laid down in the above referred judgment covers the point. The proceedings of the civil suit continue to pend till the final decree is drawn and it is not necessary for the litigant to apply for drawing up the final decree and it is an obligation on the Court to draw the final decree. Considering the above proposition, in my view, the trial Court could not have dismissed the final decree proceedings. Hence, the following order is passed:- ORDER (a) The impugned order is set aside. (b) The proceedings are restored on the file of the trial Court for drawing up the final decree. (c) The petitioner and the respondent No. 1 shall appear before the Joint Civil Judge, Senior Division, Chandrapur on 16/01/2019. (d) The petitioner shall send copy of this judgment to the respondent No. 2 by speed post/registered post acknowledgment due and file affidavit of compliance before the trial Court. (e) The trial Court shall proceed with the matter according to law and draw up the final decree. Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.