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2023 DIGILAW 1428 (AP)

V Koteswaramma v. C Seethamma

2023-11-02

NYAPATHY VIJAY

body2023
JUDGMENT 1. The present Civil Revision Petition is filed against the order dtd. 11/8/2014 in I.A.No.233 of 2011 in I.A.No.143 of 1989 in O.S.No.35 of 1980 on the file of Principal Senior Civil Judge, Narasaraopet. 2. The petitioner is plaintiff and she had filed a suit O.P.No.106 of 1978 before Subordinate Judge, Narsaraopet which was renumbered as O.S.No.35 of 1980. The suit was filed seeking partition of plaint "A" and "B" schedule properties and allot 1/4th share to the petitioner and put her in possession among other reliefs. After contest, a preliminary decree was passed in favour of the petitioner on 29/4/1988. The Defendant Nos.16 to 18 thereupon had filed A.S.No.1887 of 1998 before this Hon'ble High Court questioning the preliminary decree. Vide Judgment and Decree dtd. 20/3/2009, this Court allowed the appeal and set-aside the preliminary decree and judgment. 3. On verification, it is noticed that the petitioner had filed Civil Appeal No.9546 of 2013 before the Hon'ble Supreme Court of India questioning the Judgment and Decree dtd. 20/3/2009 in A.S.No.1887 of 1998. The Hon'ble Supreme Court had considered the merits of the case, passed a detailed judgment dtd. 19/1/2021, whereunder, the Civil Appeal was allowed and Judgment and decree in A.S.No.1887 of 1998 was set-aside. Consequently, the preliminary decree of the trial Court stood restored. 4. The facts on record disclose that the petitioner/plaintiff had filed I.A.No.143 of 1989 for passing final decree. An I.A. No.233 of 2011 was filed therein i.e. in I.A.No.143 of 1989 to condone the delay of 294 days in filing the petition under Order 9 Rule 9 C.P.C., to set aside the default order passed in final decree petition on 12/4/2010 and restore the same. The executing Court vide order dtd. 11/8/2014 rejected the application to condone the delay of 294 days in filing the petition and hence, the present Civil Revision Petition is filed. 5. It is to be noted that the final decree proceedings can be initiated at any point of time and there is no limitation prescribed for initiating final decree proceedings. Once an application has been filed for passing final decree, it is the obligation of the Court to see that the final decree proceedings are concluded at the earliest and the rights declared in the preliminary decree are enjoyed by the respective parties. Once an application has been filed for passing final decree, it is the obligation of the Court to see that the final decree proceedings are concluded at the earliest and the rights declared in the preliminary decree are enjoyed by the respective parties. When there is no limitation prescribed for filing of final decree proceedings, the trial Court dismissing an application for condonation of delay is erroneous and unsustainable ( See Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 SCC online SC 737. at para 31).The Hon'ble Supreme Court in the above mentioned judgment considering the procedural hazards in C.P.C. and in passing of the final decree also opined that a separate application for drawing up the final decree is not required and that the trial courts should suo motu initiate proceedings for final decree. For ready reference, para 33 of the said judgment is extracted below: "33. We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings." 6. The concern of Hon'ble Supreme Court in delays relating to drawing up of the final decrees was considered in Shub Karan Bubna v. Sita Saran Bubna, 2012(3) SCC 548 . and the same was referred at length in Kattukandi Edathil Krishnan (1 supra), wherein it was opined that the enormous delays in final decree proceedings are questioning the very credibility of the civil dispute system. and the same was referred at length in Kattukandi Edathil Krishnan (1 supra), wherein it was opined that the enormous delays in final decree proceedings are questioning the very credibility of the civil dispute system. A reading of paragraphs 23- 29 of the said judgment should stir the conscience of all the stakeholders involved in the delivery of justice. The Paragraphs 23-27 thereof are extracted below for ready reference; " 23. A suggestion for debate and legislative action . The century old civil procedure contemplates judgments, decrees, preliminary decrees and final decrees and execution of decrees. They provide for a "pause" between a decree and execution. A "pause" has also developed by practice between a preliminary decree and a final decree. The "pause" is to enable the defendant to voluntarily comply with the decree or declaration contained in the preliminary decree. The ground reality is that defendants normally do not comply with decrees without the pursuance of an execution. In very few cases the defendants in a partition suit voluntarily divide the property on the passing of a preliminary decree. In very few cases, defendants in money suits pay the decretal amount as per the decrees. Consequently, it is necessary to go to the second stage, that is, levy of execution, or applications for final decree followed by levy of execution in almost all cases. 24. A litigant coming to court seeking relief is not interested in receiving a paper decree when he succeeds in establishing his case. What he wants is relief. If it is a suit for money, he wants the money. If it is a suit for property, he wants the property. He naturally wonders why when he files a suit for recovery of money, he should first engage a lawyer and obtain a decree and then again engage a lawyer and execute the decree. Similarly, when he files a suit for partition, he wonders why he has to first secure a preliminary decree, then file an application and obtain a final decree and then file an execution to get the actual relief. The commonsensical query is: why not a continuous process? Similarly, when he files a suit for partition, he wonders why he has to first secure a preliminary decree, then file an application and obtain a final decree and then file an execution to get the actual relief. The commonsensical query is: why not a continuous process? The litigant is perplexed as to why when a money decree is passed, the court does not fix the date for payment and if it is not paid, proceed with the execution; when a preliminary decree is passed in a partition suit, why the court does not forthwith fix a date for appointment of a Commissioner for division and make a final decree and deliver actual possession of his separated share. Why is it necessary for him to remind the court and approach the court at different stages? 25. Because of the artificial division of suits into preliminary decree proceedings, final decree proceedings and execution proceedings, many trial Judges tend to believe that adjudication of the right being the judicial function, they should concentrate on that part. Consequently, adequate importance is not given to the final decree proceedings and execution proceedings which are considered to be ministerial functions. The focus is on disposing of cases rather than ensuring that the litigant gets the relief. But the focus should not only be on early disposal of cases, but also on early and easy securement of relief for which the party approaches the court. Even among lawyers, importance is given only to securing a decree, not securing of relief. Many lawyers handle suits only till preliminary decree is made, then hand it over to their juniors to conduct the final decree proceedings and then give it to their clerks for conducting the execution proceedings. 26. Many a time, a party exhausts his finances and energy by the time he secures the preliminary decree and has neither the capacity nor the energy to pursue the matter to get the final relief. As a consequence, we have found cases where a suit is decreed or a preliminary decree is granted within a year or two, the final decree proceeding and execution takes decades for completion. This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system. Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits. 27. This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system. Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits. 27. In the present system, when a preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant." 7. Another Judgment of the Hon'ble Supreme Court concerning the delay of execution of decrees came up for consideration in Rahul S.Shah v. Jinendra Kumar Gandhi and others, (2021) 6 SCC 418 . whereunder, a series of directions were given wrt execution of decrees. The direction relevant for this case is at para 42.12, whereunder, it was directed that the executing Court must dispose of the execution proceedings within six months from the date filing, which may be extended only by recording reasons in writing for such delay. The para 42.12 is extracted below for ready reference; 42.12. The executing Court must dispose of the execution proceedings within six months from the date filing, which may be extended only by recording reasons in writing for such delay. 8. Yet another judgment of Hon'ble Supreme Court concerning the procedural delays was rendered in Yashpal Jain Vs sushila Devi and others, 2023 SCC Online SC 1377. 9. On a combined understanding of the directions of the Hon'ble Supreme Court, the trial Courts should suo motu initiate final decree proceedings and the execution proceedings should be concluded within a period of six months. In the event of a delay in conclusion of execution proceedings, reasons should be recorded for such delay. 10. 9. On a combined understanding of the directions of the Hon'ble Supreme Court, the trial Courts should suo motu initiate final decree proceedings and the execution proceedings should be concluded within a period of six months. In the event of a delay in conclusion of execution proceedings, reasons should be recorded for such delay. 10. In the light of the above mentioned concerns and directions of Hon'ble Supreme Court, the dismissal of a trivial application for condonation of 294 days delay in setting aside application under Order 9 Rule 9 of C.P.C., dtd. 12/4/2010 would frustrate the rights of the parties which stood crystallized under the preliminary decree. Orders of this nature should be avoided. 11. Therefore, the order of the executing Court dtd. 11/8/2014 in I.A.No.233 of 2011 in I.A.No.143 of 1989 is set aside and the executing Court shall take measures as directed by the Hon'ble Supreme Court in the above mentioned judgments forthwith and draw the final decree within the time span of six months as prescribed by the Hon'ble Supreme Court and shall report the compliance to the Registry. 12. With the above direction, the Civil Revision Petition is allowed. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.