DECREE:
Final decree and Preliminary decree - Distinction between -Discussed.
Preliminary decree - Compromise application - Tenor of application showed
that the parties to the compromise settled the entire controversy and they
were in separate and exclusive possession of the properties allotted to
their respective shares - The compromise application did not contain any
clause regarding the future course of action - Whether the decree passed by
the court of first instance on the basis of compromise had become
enforceable or it had the status of a preliminary decree requiring
completion of a final decree proceeding to make it executable - Held: The
parties were absolutely conscious and rightly so, that their rights had
been fructified and their possession had been exclusively determined - They
were well aware that the decree was final in nature as their shares were
allotted and nothing remained to be done by metes and bounds - Their rights
had attained finality and no further enquiry from any spectrum was required
to be carried out - The whole thing had been embodied in the decree passed
on the foundation of compromise - Thus the compromise decree was the final
decree.
LIMITATION ACT, 1963: Article 136 - Execution application - Whether hit by
bar of limitation - Partition suit - Predecessor of appellant one of the
defendant proceeded ex parte - Compromise decree - Subsequent suit for
partition filed by appellants on the ground that earlier decree was
obtained by fraud - Dismissed - Execution application filed after
limitation period - Objections by appellants that execution proceeding was
barred by limitation - Held: There was no stay of the earlier judgment or
any proceedings emanating therefrom - There was no impediment or disability
in the way of the decree holder to execute the decree but the same was not
done - Therefore, initiation of execution proceedings was indubitably
barred by limitation.
Words and phrases: Compromise/Settlement - Meaning of.
A partition suit was compromised between the parties. 'K', the predecessor
of the appellants although had appeared in the suit and filed written
statement, however, thereafter chose not to contest. The compromise
petition stated that the parties were in separate and exclusive possession
of the properties respectively belonging to them and had obtained separate
and exclusive possession of the properties allotted to their respective
shares. The trial court accepted the petition of compromise and passed a
compromise decree on 3.4.1964 treating 'K' ex parte. 'K' initiated a fresh
partition suit on the ground that the earlier decree was obtained by fraud.
The said suit was dismissed on 27th August, 1994. The appeal thereagainst
was dismissed for want of prosecution on 6.1.2004. At this juncture, the
respondents filed execution case seeking execution of the compromise
decree. In the meantime, 'K' died and the execution was levied against his
legal heirs, the appellants. An objection was raised by the appellants that
the execution proceeding was barred by limitation. The Sub-Judge dismissed
the execution proceedings on the ground that it was absolutely barred by
limitation. The single judge of the High Court allowed the revision on the
ground that the execution case was not barred by limitation.
The questions which arose for consideration in the instant appeal were
whether the decree passed by the court of first instance on the basis of
compromise had become enforceable or it had the status of a preliminary
decree requiring completion of a final decree proceeding to make it
executable and; whether the execution proceeding was untenable being hit by
the law of limitation.
Allowing the appeal, the Court
HELD: 1. Perusal of the tenor of the entire compromise application showed
that the parties to the compromise settled the entire controversy. The
defendant No. 3 who was the predecessor-in-interest of the appellants was
not allotted any share. As is perceptible from the terms of the compromise
which formed a part of the decree, the parties had conceded that they were
in separate and exclusive possession of the properties respectively
belonging to them and further had obtained separate and exclusive
possession of the properties allotted to their respective shares. Thus,
their respective shares and exclusive possession were admitted on the basis
of the said compromise petition and a decree had been drawn up. The Court
had taken note of the contents of the compromise wherein it had been prayed
that the decree be passed in accordance with the terms of the compromise.
It was clearly evincible that the Court had proceeded on the basis that it
was finally disposing of the suit in accordance with the terms set out in
the compromise petition. The factum of exclusive possession had also been
recorded in the application of compromise. It had been clearly stated that
parties have been put in separate possession of the various immovable
properties. Even in the counter affidavit filed by the respondents, it was
admitted that possession had remained with the parties as per the
allotment. [Paras 16, 17]
2. A preliminary decree is one which declares the rights and liabilities of
the parties leaving the actual result to be worked out in further
proceedings. Then, as a result of the further inquiries conducted pursuant
to the preliminary decree, the rights of the parties are finally determined
and a decree is passed in accordance with such determination, which is the
final decree. It is clear that in the case at hand, the parties entered
into a compromise and clearly admitted that they were in separate and
exclusive possession of the properties and the same had already been
allotted to them. It was also admitted that they were in possession of
their respective shares and, therefore, no final decree or execution was
required to be filed. It is demonstrable that the compromise application
did not contain any clause regarding the future course of action. The
parties were absolutely conscious and rightly so, that their rights had
been fructified and their possession had been exclusively determined. They
were well aware that the decree was final in nature as their shares were
allotted and nothing remained to be done by metes and bounds. Their rights
had attained finality and no further enquiry from any spectrum was required
to be carried out. The whole thing had been embodied in the decree passed
on the foundation of compromise. [para 22, 23]
3. The term 'compromise' essentially means settlement of differences by
mutual consent. In such process, the adversarial claims come to rest. The
cavil between the parties is given a decent burial. A compromise which is
arrived at by the parties puts an end to the litigative battle. Sometimes
the parties feel that it is an unfortunate bitter struggle and allow good
sense to prevail to resolve the dispute. In certain cases, by intervention
of well-wishers, the conciliatory process commences and eventually, by
consensus and concurrence, rights get concretised. A reciprocal settlement
with a clear mind is regarded as noble. It signifies magnificent and
majestic facets of the human mind. The exalted state of affairs brings in
quintessence of sublime solemnity and social stability. In the instant
case, as the factual matrix would reveal, a decree came to be passed on the
bedrock of a compromise in entirety from all angles leaving nothing to be
done in the future. The curtains were really drawn and the Court gave the
stamp of approval to the same. Thus, the inescapable conclusion is that the
compromise decree dated 03.04.1964 was a final decree. [Para 24]
4. It is well settled in law that a preliminary decree declares the rights
and liabilities, but in a given case, a decree may be both preliminary and
final and that apart, a decree may be partly preliminary and partly final.
What is executable is a final decree and not a preliminary decree unless
and until the final decree is a part of the preliminary decree. That apart,
a final decree proceeding may be initiated at any point of time. [Para 27]
Rachakonda Venkat Rao And Others v. R. Satya Bai (D) by L.R. And Another
AIR (2003) SC 3322 : 2003 (3) Suppl. SCR 629; Renu Devi v. Mahendra Singh
and others AIR 2003 SC 1608: 2003 (1) SCR 820 - relied on.
Muzaffar Husain v. Sharafat Hussain AIR 1933 Oudh 562; Raghubir Sahu v.
Ajodhya Sahu AIR 1945 Pat 482 - approved.
5. Perusal of the Article 136 of Limitation Act showed that an application
for execution of a decree (other than a decree granting a mandatory
injunction) or order of any civil court is to be filed within a period of
twelve years. In the case at hand, the compromise decree had the status of
a final decree and was immediately executable. The period during which the
suit and appeal preferred by the appellants remained pendency was not to be
excluded for the purpose of execution. There was no stay of the said
judgment or any proceedings emanating therefrom. In the absence of any
interdiction from any court, the decree-holder was entitled to execute the
decree. There was no impediment or disability in the way of the respondents
to execute the decree but the same was not done. Therefore, the
irresistible conclusion is that the initiation of execution proceedings was
indubitably barred by limitation. Thus analyzed, the reasons ascribed by
the single Judge are absolutely unsustainable. The period of limitation
stipulated under Article 136 of the Act could not have been condoned. The
reliance placed on the decision in Bharti Devi is totally misconceived
inasmuch as in the said case, the execution proceeding was initiated for
permanent injunction. [Paras 30, 32, 35]
Hasham Abbas Sayyad v. Usman Abbas Sayyad and others (2007) 2 SCC 355 :
2006 (10) Suppl.SCR 740; Bikoba Deora Gaikwad and others v. Hirabai
Marutirao Ghorgare and others (2008) 8 SCC 198 : 2008 (9) SCR 1038; Dr.
Chiranji Lal (D) by LRs. v. Hari Das (D) By LRs., (2005) 10 SCC 746 : 2005
(1) Suppl. SCR 359; Ram Bachan Rai and others v. Ram Udar Rai and others
(2006) 9 SCC 446:2006 (1) Suppl. SCR 896; Ratan Singh v. Vijay Singh and
Ors. 2000 (8) SCALE 214; Manohar v. Jaipalsing AIR 2008 SC 429: 2007 (12)
SCR 364 - relied on.
Bharti Devi v. Fagu Mahto 2009 (3) JLJR 90 : AIR 2010 Jhar 10 - held
inapplicable.
Case Law Reference:
AIR 2010 Jhar 10 held inapplicable Paras 13,26, 35
2003 (3) Suppl. SCR 629 relied on Para 18
AIR 1933 Oudh 562 approved Para 19
AIR 1945 Pat 482 approved Para 20
2003 (1) SCR 820 relied on Para 21
2006 (10) Suppl. SCR 740 relied on Para 27
2008 (9) SCR 1038 relied on Para 28
2005 (1) Suppl. SCR 359 relied on Paras 30,31
2006 (1) Suppl. SCR 896 relied on Para 31
2000 (8) SCALE 214 relied on Para 32
2007 (12) SCR 364 relied on Para 34
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2524 of 2012.
From the Judgment & Order dated 19.08.2009 of the High Court of Jharkhand
at Ranchiin Civil Revision No. 53 of 2007.
Ajit Kumar Sinha, Ambhoj umar Sinha for the Appellants.
S.S. Shamshery, Bhupendar Yadav, Babita Yadav, Bhakti Vardhan Singh, R.C.
Kohli for the Respondents.
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2524 OF 2012
(Arising out of S.L.P. (civil) No. 25038 of 2009
Bimal Kumar & Another ... Appellants
Versus
Shakuntala Debi & Others ...
Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. In this appeal, the assail is to the order dated
19.9.2009 passed by the learned single Judge of Jharkhand
High Court at Ranchi in C.R. No. 53 of 2007 by which he
has dislodged the order dated 10.7.2006 passed by the
learned Sub-Judge (I), Ranchi, whereby he had dismissed
2
the Execution Case No. 8 of 2004 filed by the respondents
as being barred by limitation.
-
3. Filtering the unnecessary details, the facts which are
requisite to be frescoed for the purpose of disposal of the
present appeal are that one Kanilal Kasera filed a Partition
Suit No. 131 of 1962 against his father, Nanak Kasera, and
other brothers. The suit was compromised leaving aside
Kishori Lal Kasera, the father of the present appellants, and
a joint petition of compromise between the plaintiff and the
defendant Nos. 1, 2, 4 to 9 and 11 to 18 was filed. It is
worth noting that Kishori Lal Kasera had appeared in the
suit and filed the written statement but thereafter chose not
to contest.
4. The petition of compromise contained that the
defendant Nos. 1, 9, 11 and 12 had relinquished and given
up all their interests in item Nos. 3 and 8 of the suit
schedule of property, being Holding No. 285 of new holding
No. 509A of Ward No. II situated on portion of Municipal
Survey Plot No. 621 and Holding No. 431 of Ward No. 1
3
situated on Municipal Survey Plot No. 902, and further
declared that they had no claim or concern with any other
properties involved in the suit; that the business, namely,
"SEVEN BROTHERS STEEL FURNITURE WORKS", item 5 of
-
the schedule, belonged exclusively to the defendant No. 2,
Moti Lal Kasera, and neither the plaintiff nor any of the
other defendants either ever had or shall ever have any
claim or interest; and that one half of the house and
premises comprised in Municipal Holding No. 431, Ward No.
1, item 3 of the schedule, and half of Holding No. 509 A of
Ward II, situated on portion of M.S. Plot No. 631, item 2 of
the schedule, shall belong to the defendant No. 2 with all
the liabilities and outstanding dues and the plaintiff and the
other defendants shall have no liabilities or interest in the
said properties; and that the business carried on under the
name of `Chotanagpur Tin Works', item 6A of the schedule,
was the sole separate business of the defendant No. 5,
Prakash Kumar Kasera, and the plaintiff or the other
defendants had no claim on the said property.
4
5. The application further contained that the partition of
the house and premises comprised in Holding No. 431 of
Ward I, item 3 of the schedule, marked in green colour in
the exhibit, shall belong exclusively to the defendant no. 4,
Mohan Lal Kasera, and neither the plaintiff nor the other
defendants shall have any claim or interest; that the -
business of iron shop at Bazaar Tan Ranchi, item 6 (c) of
the schedule, was the separate and exclusive business of
the defendant No. 6, Surendra Lal Kasera, and none others
had any claim or interest and the portion of the building
and premises comprised in Municipal Holding No. 431 of
Ward No. I, item 3 of the schedule, marked in yellow colour,
shall also belong to the defendant No. 6 and no one else had
any claim or interest; that the portion of the building and
premises comprised in Municipal Holding No. 431 of Ward
No. I, item 3 of the schedule, marked in blue colour, and
one-half of the shop premises comprised in Holding No. 509
A over portion of M.S. Plot No. 621 being item No. 2 of the
schedule to the plaint shall exclusively belong to the
plaintiff and he shall have absolute right over the same.
5
6. That apart, the plaintiff had agreed to pay up all
outstanding dues of Bindrilal Agarwalla against the
defendant No. 1 and none of the defendants shall be liable
for the same.
7. It was also agreed upon that the House situated on
Holding 6 Ward II of the Ranchi Municipality being
comprised of Khata No. 71 plot No. 72 area 61 decimal and
-
plot No. 79 area 7= decimal total area measuring 14
decimal, being item No. 4 of the schedule and the house and
premises comprised of Holding No. 180 Ward III being
survey plot No. 92 area 0.30 Karies and Municipal Survey
Plot No. 92 area 0.063 Karies total area 0.093 Karies of
Hajamtolio, Ranchi being item No. 5 were separate and
exclusive properties of Smt. Rama Devi and shall belong
exclusively to the defendant No. 7, Srimati Rama Devi, the
widow of Hira Lal Kasera, and no one else shall have any
claim or concern in the said property; that the shop
premises being holding No. 509 B of Ward II of Ranchi
Municipality situated on portion of M.S. Plot No. 621 being
6
item No. 1 of the schedule and the house premises
comprised of Holding No. 133(g) of Ward II being item No. 8
and the properties comprised Holding No. 145 A of Ward No.
I measuring 6= decimals being plot No. 268 of Khata No. 34
of Village Konka, being item No. 9 of the schedule belonged
to the defendant No. 8, Sreemati Munitri Debi, wife of
Prakash Lal Kasera, the defendant No. 5, and none had any
claim or interest; that the house and the premises situated
at Madhukam, Ranchi comprised in Holding No. 318 of -
Ward I being item No. 10 of the schedule was the property of
the defendant No. 13, Shreemati Deojani Debi, wife of Moti
Lal Kasera, the defendant No. 2.
8. It was stipulated that the business and properties
mentioned in item Nos. 6(b) and 7 were erroneously
included in the suit.
9. Be it noted, in Clause (K) of the petition of compromise,
it was clearly stated as follows: -
"k) That the parties are in separate and
exclusive possession of the properties
respectively belonging to them and have
obtained separate and exclusive possession of
7
the properties allotted to their respective
shares."
10. The learned trial Judge being satisfied accepted the
petition of compromise and passed a compromise decree on
3.4.1964 treating Kishori Lal Kasera ex parte.
11. When the matter stood thus, the legal representatives
of Kishori Lal Kasera, the present appellants, initiated a
fresh partition suit No. 49 of 1973 on the ground that the
earlier decree was obtained by fraud. In the said suit, they
claimed 1/11th share of the property for themselves which -
was involved in the earlier suit being P.S. No. 131 of 1962.
The said suit was dismissed on 27th August, 1994. Being
dissatisfied with the said decision, Kishori Lal Kasera
preferred Title Appeal No. 109 of 1994 which was dismissed
for want of prosecution on 6.1.2004. At this juncture, the
respondents herein filed execution case No. 8 of 2004
seeking execution of the decree passed in P.S. No. 131 of
1962. Be it noted, in the meantime, Kishori Lal Kasera had
breathed his last and, therefore, the execution was levied
against the legal heirs, the appellants herein.
8
12. An objection was raised by the appellants that the
execution proceeding was barred by limitation and hence,
deserved to be dismissed. The learned Sub-Judge
dismissed the execution proceedings on the ground that it
was absolutely barred by limitation.
13. Aggrieved by the said order, the respondents preferred
C.R. No. 53 of 2007 under Section 115 of the Code of Civil
Procedure (for short `the CPC') and the learned single Judge
allowed the said Revision on the ground that the execution
case preferred by the revisionists was not barred by
limitation. For the said purpose, the learned single Judge -
placed reliance on the decision in Bharti Devi v. Fagu
Mahto1. The legal substantiality of the said order is the
subject-matter of challenge in this appeal.
14. We have heard Mr. Amboj Kumar Sinha, learned
counsel for the appellants, and Mr. S.S. Shamshery, learned
counsel for the respondents.
1
2009 (3) JLJR 90 : AIR 2010 Jhar 10
9
15. The two seminal and spinal issues that had emanated
before the executing court and the High Court and have also
spiralled to this Court are whether the decree passed by the
court of first instance on the basis of compromise had
become enforceable or it had the status of a preliminary
decree requiring completion of a final decree proceeding to
make it executable and whether the execution proceeding
was untenable being hit by the law of limitation.
16. We shall advert to the first issue first. On a perusal of
the tenor of the entire compromise application, we are of the
considered view that the parties to the compromise settled
the entire controversy. The defendant No. 3 who was the
predecessor-in-interest of the present appellants was not -
allotted any share. As is perceptible from the terms of the
compromise which formed a part of the decree, the parties
had conceded that they were in separate and exclusive
possession of the properties respectively belonging to them
and further had obtained separate and exclusive possession
of the properties allotted to their respective shares. Thus,
their respective shares and exclusive possession were
admitted on the basis of the said compromise petition and a
10
decree had been drawn up. The Court had taken note of the
contents of the compromise wherein it had been prayed that
the decree be passed in accordance with the terms of the
compromise. It is clearly evincible that the Court had
proceeded on the basis that it was finally disposing of the
suit in accordance with the terms set out in the compromise
petition. The factum of exclusive possession had also been
recorded in the application of compromise. It had been
clearly stated that parties have been put in separate
possession of the various immovable properties.
17. Quite apart from the above, in the counter affidavit
filed by the respondents, it is admitted that possession had
remained with the parties as per the allotment. It is -
profitable to reproduce the said portion of the counter
affidavit:-
"It is pertinent to mention here that the parties
who were allotted the share as per the decree
were stated to be in possession of their share
and it was written in the judgment that no
preliminary, final decree or execution was
required to be filed. Though Kishori Lal
Kasera had full knowledge of the compromise
decree but he did not challenge the decree
within the period of limitation therefore the
compromise decree became final and absolute
11
against all the parties, including Kishori Lal
Kasera."
18. Despite the aforesaid, a contention has been advanced
by the learned counsel for the respondents that in a suit for
partition, drawing up of a final decree is imperative. In this
context, we may usefully refer to the decision in
Rachakonda Venkat Rao And Others v. R. Satya Bai (D)
by L.R. And Another2 wherein it has been stated as
follows:-
"The compromise application does not contain
any clause regarding future course of action
which gives a clear indication that nothing was
left for future on the question of partition of
the joint family properties. The curtain had
been finally drawn."
After so stating, the Bench proceeded to observe as follows:-
"The decree as a matter of fact leaves nothing
for future. As noticed earlier in a preliminary
decree normally the court declares the shares
of the parties and specifies the properties to be
partitioned in the event of there being a
dispute about the properties to be partitioned.
After declaring the shares of the parties and
the properties to be partitioned, the Court
appoints a Commissioner to suggest mode of
partition in terms of O. XXVI, R. 13, C.P.C. A
2
AIR 2003 SC 3322 : 2003 7 SCC 452
12
perusal of Order XXVI, R. 13 C.P.C. shows that
it comes into operation after a preliminary
decree for partition has been passed. In the
present case, there was no preliminary decree
for partition and, therefore, R. 13 of O. XXVI
does not come into operation. If the plaintiffs
considered the decree dated 13th July, 1978 as
a preliminary decree, why did they wait to
move the application for final decree
proceedings for 13 years? The only answer is
that the plaintiffs knew and they always
believed that the 1978 decree was a final
decree for partition and it was only passage of
time and change in value of the properties
which was not up to their expectations that
drove plaintiffs to move such an application."
19. In Muzaffar Husain v. Sharafat Hussain3, it has
been held as follows:-
"We think the decree passed by the civil Court
should be treated as a final order for effecting
a partition. It is true that the decree was
passed on the basis of a compromise filed by
-
the parties, but the fact remains that it was
passed in a partition suit, and had the effect
of allotting a specific portion of the property to
the plaintiff as his share in the property. The
conclusion at which we have arrived is
supported by a decision of the Madras High
Court in Thiruvengadathamiah v.
Mungiah4"
3
AIR 1933 Oudh 562
4
13
20. In Raghubir Sahu v. Ajodhya Sahu5, the Division
Bench of Patna High Court had ruled thus: -
"In the present case, the decree was passed on
compromise. It was admitted that by the
compromise, the properties allotted to the
share of each party were clearly specified and
schedules of properties allotted to each were
appended to the compromise petition.
Therefore, no further inquiry was at all
necessary. In such circumstances, the decree
did not merely declare the rights of the several
parties interested in the properties but also
allotted the properties according to the
respective shares of each party. Therefore, it
was not a preliminary decree but it was the
final decree in the suit."
21. In Renu Devi v. Mahendra Singh and others6, the
effect of a compromise decree and allotment of shares in
pursuance of the said decree was dealt with. The two-
Judge Bench referred to the decisions in Raghubir Sahu v.
Ajodhya Sahu (supra) and Muzaffar Husain (supra) and -
(1912) ILR 35 Mad 26
5
AIR 1945 Pat 482
6
AIR 2003 SC 1608
14
opined that the law had been correctly stated in the said
authorities.
22. In the said case, after referring to CPC by Mulla, this
Court, while drawing a distinction between the preliminary
and the final decree, has stated that a preliminary decree
declares the rights or shares of the parties to the partition.
Once the shares have been declared and a further inquiry
still remains to be done for actually partitioning the
property and placing the parties in separate possession of
the divided property, then such inquiry shall be held and
pursuant to the result of further inquiry, a final decree shall
be passed. A preliminary decree is one which declares the
rights and liabilities of the parties leaving the actual result
to be worked out in further proceedings. Then, as a result
of the further inquiries conducted pursuant to the
preliminary decree, the rights of the parties are finally
determined and a decree is passed in accordance with such
determination, which is the final decree. Thus,
fundamentally, the distinction between preliminary and
final decree is that: a preliminary decree merely declares the
rights and shares of the parties and leaves room for some -
15
further inquiry to be held and conducted pursuant to the
directions made in the preliminary decree which inquiry
having been conducted and the rights of the parties finally
determined a decree incorporating such determination
needs to be drawn up which is the final decree.
23. Applying the principles laid down in the aforesaid
authorities, it is graphically clear that in the case at hand,
the parties entered into a compromise and clearly admitted
that they were in separate and exclusive possession of the
properties and the same had already been allotted to them.
It was also admitted that they were in possession of their
respective shares and, therefore, no final decree or
execution was required to be filed. It is demonstrable that
the compromise application does not contain any clause
regarding the future course of action. The parties were
absolutely conscious and rightly so, that their rights had
been fructified and their possession had been exclusively
determined. They were well aware that the decree was final
in nature as their shares were allotted and nothing
remained to be done by metes and bounds. Their rights
16
had attained finality and no further enquiry from any
spectrum -
was required to be carried out. The whole thing had been
embodied in the decree passed on the foundation of
compromise.
24. It is to be borne in mind that the term `compromise'
essentially means settlement of differences by mutual
consent. In such process, the adversarial claims come to
rest. The cavil between the parties is given a decent burial.
A compromise which is arrived at by the parties puts an end
to the litigative battle. Sometimes the parties feel that it is
an unfortunate bitter struggle and allow good sense to
prevail to resolve the dispute. In certain cases, by
intervention of well-wishers, the conciliatory process
commences and eventually, by consensus and concurrence,
rights get concretised. A reciprocal settlement with a clear
mind is regarded as noble. It signifies magnificent and
majestic facets of the human mind. The exalted state of
affairs brings in quintessence of sublime solemnity and
social stability. In the present case, as the factual matrix
would reveal, a decree came to be passed on the bedrock of
17
a compromise in entirety from all angles leaving nothing to
be done in the future. The curtains were really drawn and
-
the Court gave the stamp of approval to the same. Thus,
the inescapable conclusion is that the compromise decree
dated 03.04.1964 was a final decree.
25. Presently, we shall dwell upon the issue whether the
execution levied by the respondents was barred by
limitation or not. The executing Court, by its order dated
10.07.2006, accepted the plea of the present appellants and
came to hold that the execution petition filed by the decree
holder was hopelessly barred by limitation. In the Civil
Revision, the learned Single Judge overturned the decision
on several counts; (i) that no steps were taken and no
objection was raised by the father of the opposite parties for
setting aside the ex parte decree passed in the first suit, if
he was aggrieved by it, for about 9 years, though he had
appeared and had full knowledge about the first suit; (ii)
that as per the compromise decree, the parties were in
possession of the respective shares allotted to them and,
18
accordingly, neither preliminary nor final decree was drawn
up and there was no occasion for the petitioners for filing
execution case for enforcement of the compromise decree;
(iii) that the second suit challenging the compromise decree
-
passed in the first suit remained pending for about 21
years; (iv) that the appeal filed against the dismissal of the
second suit also remained pending for about 10 years; (v)
that after the appeal was dismissed and the judgment and
decree passed in the second suit became final, the execution
case was filed by the petitioner alleging dispossession from
the family business being run in the ground floor of the
building; and (vi) that on the basis of such allegation, the
compromise decree passed in the first suit became
enforceable.
26. Apart from the aforesaid reasons, the learned Single
Judge has opined that after the execution case was
admitted by the predecessor of the learned Sub-Judge
presumably after condoning the delay, the successor should
not have dismissed it on the ground of limitation. He placed
19
reliance on the decision rendered in Bharti Devi (supra)
and buttressed the reasoning that there was no delay in
levying of the execution proceeding. The learned single
Judge further took note of the pending Misc. Appeal No. 369
of 2008 preferred by the present appellants to reinforce the
conclusion.
-
27. It is well settled in law that a preliminary decree
declares the rights and liabilities, but in a given case, a
decree may be both preliminary and final and that apart, a
decree may be partly preliminary and partly final. It has
been so held in Rachakonda Venkat Rao v. R. Satya
Bai7. It is worth noting that what is executable is a final
decree and not a preliminary decree unless and until the
final decree is a part of the preliminary decree. That apart,
a final decree proceeding may be initiated at any point of
time. It has been so enunciated in Hasham Abbas Sayyad
v. Usman Abbas Sayyad and others8.
7
(2003) 7 SCC 452
8
20
28. In Bikoba Deora Gaikwad and others v. Hirabai
Marutirao Ghorgare and others9, a two-Judge Bench of
this Court has held that only when a suit is completely
disposed of, thereby a final decree would come into being.
In the said case, it has also been laid down that an
application for taking steps towards passing a final decree is
not an execution application and further, for the purposes
of construing the nature of the decree, one has to look to -
the terms thereof rather than speculate upon the court's
intention.
29. Regard being had to the aforesaid principles and
having opined that the decree passed on the basis of a
compromise in the case at hand is the final decree, it is to
be addressed whether the execution is barred by limitation.
Article 136 of the Limitation Act (for brevity `the Act') reads
as follows: -
"Description of Period of Time from which period begins
application to run
(2007) 2 SCC 355
9
(2008) 8 SCC 198
21
Limitation
136. For the Twelve When the decree or order
execution of any years becomes enforceable or where
decree (other the decree or any subsequent
than a decree order directs any payment of
granting a money or the delivery of any
mandatory property to be made at a
injunction) or certain date or at recurring
order of any periods, when default in
civil court. making the payment or
delivery in respect of which
execution is sought, takes
place;
Provided that an application
for the enforcement or
execution of a decree granting
a perpetual injunction shall
not be subject to any period of
limitation."
30. On a perusal of the said Article, it is quite vivid that an
application for execution of a decree (other than a decree -
granting a mandatory injunction) or order of any civil court
is to be filed within a period of twelve years. In Dr.
Chiranji Lal (D) by LRs. v. Hari Das (D) By LRs.,10 the
question arose whether a final decree becomes enforceable
only when it is engrossed on the stamp paper. The three-
Judge Bench dealing with the controversy has opined that
10
(2005) 10 SCC 746
22
Article 136 of the Limitation Act presupposes two conditions
for the execution of the decree; firstly, the judgment has to
be converted into a decree and secondly, the decree should
be enforceable. The submission that the period of limitation
begins to run from the date when the decree becomes
enforceable, i.e., when the decree is engrossed on the stamp
paper, is unacceptable. The Bench, while elaborating the
said facet, proceeded to lay down as under: -
"24. A decree in a suit for partition declares the rights of the
parties in the immovable properties and divides the shares by
metes and bounds. Since a decree in a suit for partition creates
rights and liabilities of the parties with respect to the immovable
properties, it is considered as an instrument liable for the
payment of stamp duty under the Indian Stamp Act. The object of
the Stamp Act being securing the revenue for the State, the
scheme of the Stamp Act provides that a decree of partition not
duly stamped can be impounded -
and once the requisite stamp duty along with penalty, if any, is
paid the decree can be acted upon.
25. The engrossment of the final decree in a suit for partition
would relate back to the date of the decree. The beginning of the
period of limitation for executing such a decree cannot be made
to depend upon date of the engrossment of such a decree on the
stamp paper. The date of furnishing of stamp paper is an
uncertain act, within the domain, purview and control of a party.
No date or period is fixed for furnishing stamp papers. No rule
has been shown to us requiring the court to call upon or give any
time for furnishing of stamp paper. A party by his own act of not
furnishing stamp paper cannot stop the running of period of
limitation. None can take advantage of his own wrong. The
proposition that period of limitation would remain suspended till
stamp paper is furnished and decree engrossed thereupon and
23
only thereafter the period of twelve years will begin to run would
lead to absurdity. In Yeshwant Deorao Deshmukh v.
Walchand Ramchand Kothari [1950 SCR 852 : AIR 1951 SC
16] it was said that the payment of court fee on the amount
found due was entirely in the power of the decree holder and
there was nothing to prevent him from paying it then and there;
it was a decree capable of execution from the very date it was
passed.
26. Rules of limitation are meant to see that parties do not resort
to dilatory tactics, but seek their remedy promptly. As
abovenoted, there is no statutory provision prescribing a time
limit for furnishing of the stamp paper for engrossing the decree
or time limit for engrossment of the decree on stamp paper and
there is no statutory obligation on the Court -
passing the decree to direct the parties to furnish the stamp
paper for engrossing the decree. In the present case the Court
has not passed an order directing the parties to furnish the
stamp papers for the purpose of engrossing the decree. Merely
because there is no direction by the Court to furnish the stamp
papers for engrossing of the decree or there is no time limit fixed
by law, does not mean that the party can furnish stamp papers
at its sweet will and claim that the period of limitation provided
under Article 136 of the Act would start only thereafter as and
when the decree is engrossed thereupon. The starting of period of
limitation for execution of a partition decree cannot be made
contingent upon the engrossment of the decree on the stamp
paper."
31. In Ram Bachan Rai and others v. Ram Udar Rai
and others11, a contention was advanced to the effect that
as the cost for enforcement of decree was not quantified, the
period of limitation could not have commenced from the
11
(2006) 9 SCC 446
24
date of judgment and decree. The Court referred to the
decision in Dr. Chiranji Lal (supra) and, after referring to
paragraphs 24 and 25 of the said decision, expressed the
view in unequivocal terms that the inevitable conclusion
was that the suit was barred by limitation.
-
32. In the present case, the learned counsel for the
respondents, in support of the order passed in Civil
Revision, has canvassed that when a suit was filed for
declaring the earlier compromise decree to have been
obtained by fraud and the same remained pending for more
than 21 years, the period of limitation commenced only after
the suit and the appeal arising therefrom were dismissed
since only on the conclusion of the said proceeding, the
decree became enforceable and further, the time consumed
in the said proceeding is to be excluded for computation of
the period of limitation under Article 136 of the Limitation
Act. We have already held that the decree was a final
decree. Therefore, it was immediately executable. The
question, thus, would be `was the time arrested?' On a
25
query being made, it was fairly conceded at the Bar that at
no point of time, there was any order by any court directing
stay of operation of the judgment and decree passed in P.S.
No. 131 of 1962. The question that emanates for
consideration is whether the period during which the suit
and appeal preferred by the appellants remained pending is
to be excluded for the purpose of limitation. In this context,
-
we may usefully refer to the dictum in Ratan Singh v.
Vijay Singh and Ors.12 wherein, while dwelling upon the
concept of enforceability of a decree and the effect of an
order of stay passed by the appellate court, the Bench
stated thus:
"8. When is a decree becoming enforceable?
Normally a decree or order becomes
enforceable from its date. But cases are not
unknown when the decree becomes
enforceable on some future date or on the
happening of certain specified events. The
expression "enforceable" has been used to
cover such decrees or orders also which
become enforceable subsequently.
12
2000 (8) SCALE 214
26
9. Filing of an appeal would not affect the
enforceability of the decree, unless the
appellate court stays its operation. But if the
appeal results in a decree that would
supersede the decree passed by the lower
court, it is the appellate court decree which
becomes enforceable. When the appellate order
does not amount to a decree there would be no
supersession and hence the lower court decree
continues to be enforceable."
33. In Ram Bachan Rai (supra), the two-Judge Bench
took note of the fact that an application under Order IX
Rule 13 for setting aside the ex parte decree was dismissed
which was assailed in a miscellaneous appeal and -
ultimately in a civil revision. At no stage, stay was granted
by any court. The decree holders therein filed an
application for execution after 12 years. Regard being had
to the same, it was held that the execution proceeding was
barred by limitation.
34. In this context, it is fruitful to refer to the
pronouncement in Manohar v. Jaipalsing13. In the said
case, it has been held as follows:
13
AIR 2008 SC 429
27
"15. The order of purported stay passed by this
Court in terms of its Order dated 21.3.1988 is
also of no assistance to the plaintiff decree-
holder. The Special Leave Petition was filed
only against the Order dated 1.7.1985 refusing
to review its judgment and decree dated
2.9.1983. The stay of operation of the Order
dated 1.7.1985 for all intent and purport was
meaningless as the review petition already
stood dismissed.
16. Further direction of this Court that
computation of mesne profit would go on and
the same would be deposited by the appellant
is of no consequence inasmuch as by reason
thereof neither proceeding was stayed nor had
the operation of the judgment and decree been
stayed. In fact, it was an order passed in
favour of the decree holder. The said direction
did not come in his way to execute the decree
for possession."
-
35. In the case at hand, the compromise decree had the
status of a final decree. The latter suit filed by the
appellants was for partition and declaring the ex parte
compromise decree as null and void. As has already been
stated, there was no stay of the earlier judgment or any
proceedings emanating therefrom. In the absence of any
interdiction from any court, the decree-holder was entitled
to execute the decree. It needs no special emphasis to state
that there was no impediment or disability in the way of the
28
respondents to execute the decree but the same was not
done. Therefore, the irresistible conclusion is that the
initiation of execution proceedings was indubitably barred
by limitation. Thus analyzed, the reasons ascribed by the
learned single Judge are absolutely unsustainable. The
period of limitation stipulated under Article 136 of the Act
could not have been condoned as has been so presumed by
the learned single Judge. The reliance placed on the
decision in Bharti Devi (supra) is totally misconceived
inasmuch as in the said case, the execution proceeding was
initiated for permanent injunction. No exception can be -
taken to the same and, therefore, reliance placed on the
said decision is misconceived.
36. Ex consequenti, the appeal is allowed, the order passed
by the High Court in Civil Revision is set aside and that of
the executing court is restored. The parties shall bear their
respective costs.
.....................................J.
29
[Dalveer Bhandari]
.....................................J.
[Dipak Misra]
New Delhi;
February 27, 2012.
Final decree and Preliminary decree - Distinction between -Discussed.
Preliminary decree - Compromise application - Tenor of application showed
that the parties to the compromise settled the entire controversy and they
were in separate and exclusive possession of the properties allotted to
their respective shares - The compromise application did not contain any
clause regarding the future course of action - Whether the decree passed by
the court of first instance on the basis of compromise had become
enforceable or it had the status of a preliminary decree requiring
completion of a final decree proceeding to make it executable - Held: The
parties were absolutely conscious and rightly so, that their rights had
been fructified and their possession had been exclusively determined - They
were well aware that the decree was final in nature as their shares were
allotted and nothing remained to be done by metes and bounds - Their rights
had attained finality and no further enquiry from any spectrum was required
to be carried out - The whole thing had been embodied in the decree passed
on the foundation of compromise - Thus the compromise decree was the final
decree.
LIMITATION ACT, 1963: Article 136 - Execution application - Whether hit by
bar of limitation - Partition suit - Predecessor of appellant one of the
defendant proceeded ex parte - Compromise decree - Subsequent suit for
partition filed by appellants on the ground that earlier decree was
obtained by fraud - Dismissed - Execution application filed after
limitation period - Objections by appellants that execution proceeding was
barred by limitation - Held: There was no stay of the earlier judgment or
any proceedings emanating therefrom - There was no impediment or disability
in the way of the decree holder to execute the decree but the same was not
done - Therefore, initiation of execution proceedings was indubitably
barred by limitation.
Words and phrases: Compromise/Settlement - Meaning of.
A partition suit was compromised between the parties. 'K', the predecessor
of the appellants although had appeared in the suit and filed written
statement, however, thereafter chose not to contest. The compromise
petition stated that the parties were in separate and exclusive possession
of the properties respectively belonging to them and had obtained separate
and exclusive possession of the properties allotted to their respective
shares. The trial court accepted the petition of compromise and passed a
compromise decree on 3.4.1964 treating 'K' ex parte. 'K' initiated a fresh
partition suit on the ground that the earlier decree was obtained by fraud.
The said suit was dismissed on 27th August, 1994. The appeal thereagainst
was dismissed for want of prosecution on 6.1.2004. At this juncture, the
respondents filed execution case seeking execution of the compromise
decree. In the meantime, 'K' died and the execution was levied against his
legal heirs, the appellants. An objection was raised by the appellants that
the execution proceeding was barred by limitation. The Sub-Judge dismissed
the execution proceedings on the ground that it was absolutely barred by
limitation. The single judge of the High Court allowed the revision on the
ground that the execution case was not barred by limitation.
The questions which arose for consideration in the instant appeal were
whether the decree passed by the court of first instance on the basis of
compromise had become enforceable or it had the status of a preliminary
decree requiring completion of a final decree proceeding to make it
executable and; whether the execution proceeding was untenable being hit by
the law of limitation.
Allowing the appeal, the Court
HELD: 1. Perusal of the tenor of the entire compromise application showed
that the parties to the compromise settled the entire controversy. The
defendant No. 3 who was the predecessor-in-interest of the appellants was
not allotted any share. As is perceptible from the terms of the compromise
which formed a part of the decree, the parties had conceded that they were
in separate and exclusive possession of the properties respectively
belonging to them and further had obtained separate and exclusive
possession of the properties allotted to their respective shares. Thus,
their respective shares and exclusive possession were admitted on the basis
of the said compromise petition and a decree had been drawn up. The Court
had taken note of the contents of the compromise wherein it had been prayed
that the decree be passed in accordance with the terms of the compromise.
It was clearly evincible that the Court had proceeded on the basis that it
was finally disposing of the suit in accordance with the terms set out in
the compromise petition. The factum of exclusive possession had also been
recorded in the application of compromise. It had been clearly stated that
parties have been put in separate possession of the various immovable
properties. Even in the counter affidavit filed by the respondents, it was
admitted that possession had remained with the parties as per the
allotment. [Paras 16, 17]
2. A preliminary decree is one which declares the rights and liabilities of
the parties leaving the actual result to be worked out in further
proceedings. Then, as a result of the further inquiries conducted pursuant
to the preliminary decree, the rights of the parties are finally determined
and a decree is passed in accordance with such determination, which is the
final decree. It is clear that in the case at hand, the parties entered
into a compromise and clearly admitted that they were in separate and
exclusive possession of the properties and the same had already been
allotted to them. It was also admitted that they were in possession of
their respective shares and, therefore, no final decree or execution was
required to be filed. It is demonstrable that the compromise application
did not contain any clause regarding the future course of action. The
parties were absolutely conscious and rightly so, that their rights had
been fructified and their possession had been exclusively determined. They
were well aware that the decree was final in nature as their shares were
allotted and nothing remained to be done by metes and bounds. Their rights
had attained finality and no further enquiry from any spectrum was required
to be carried out. The whole thing had been embodied in the decree passed
on the foundation of compromise. [para 22, 23]
3. The term 'compromise' essentially means settlement of differences by
mutual consent. In such process, the adversarial claims come to rest. The
cavil between the parties is given a decent burial. A compromise which is
arrived at by the parties puts an end to the litigative battle. Sometimes
the parties feel that it is an unfortunate bitter struggle and allow good
sense to prevail to resolve the dispute. In certain cases, by intervention
of well-wishers, the conciliatory process commences and eventually, by
consensus and concurrence, rights get concretised. A reciprocal settlement
with a clear mind is regarded as noble. It signifies magnificent and
majestic facets of the human mind. The exalted state of affairs brings in
quintessence of sublime solemnity and social stability. In the instant
case, as the factual matrix would reveal, a decree came to be passed on the
bedrock of a compromise in entirety from all angles leaving nothing to be
done in the future. The curtains were really drawn and the Court gave the
stamp of approval to the same. Thus, the inescapable conclusion is that the
compromise decree dated 03.04.1964 was a final decree. [Para 24]
4. It is well settled in law that a preliminary decree declares the rights
and liabilities, but in a given case, a decree may be both preliminary and
final and that apart, a decree may be partly preliminary and partly final.
What is executable is a final decree and not a preliminary decree unless
and until the final decree is a part of the preliminary decree. That apart,
a final decree proceeding may be initiated at any point of time. [Para 27]
Rachakonda Venkat Rao And Others v. R. Satya Bai (D) by L.R. And Another
AIR (2003) SC 3322 : 2003 (3) Suppl. SCR 629; Renu Devi v. Mahendra Singh
and others AIR 2003 SC 1608: 2003 (1) SCR 820 - relied on.
Muzaffar Husain v. Sharafat Hussain AIR 1933 Oudh 562; Raghubir Sahu v.
Ajodhya Sahu AIR 1945 Pat 482 - approved.
5. Perusal of the Article 136 of Limitation Act showed that an application
for execution of a decree (other than a decree granting a mandatory
injunction) or order of any civil court is to be filed within a period of
twelve years. In the case at hand, the compromise decree had the status of
a final decree and was immediately executable. The period during which the
suit and appeal preferred by the appellants remained pendency was not to be
excluded for the purpose of execution. There was no stay of the said
judgment or any proceedings emanating therefrom. In the absence of any
interdiction from any court, the decree-holder was entitled to execute the
decree. There was no impediment or disability in the way of the respondents
to execute the decree but the same was not done. Therefore, the
irresistible conclusion is that the initiation of execution proceedings was
indubitably barred by limitation. Thus analyzed, the reasons ascribed by
the single Judge are absolutely unsustainable. The period of limitation
stipulated under Article 136 of the Act could not have been condoned. The
reliance placed on the decision in Bharti Devi is totally misconceived
inasmuch as in the said case, the execution proceeding was initiated for
permanent injunction. [Paras 30, 32, 35]
Hasham Abbas Sayyad v. Usman Abbas Sayyad and others (2007) 2 SCC 355 :
2006 (10) Suppl.SCR 740; Bikoba Deora Gaikwad and others v. Hirabai
Marutirao Ghorgare and others (2008) 8 SCC 198 : 2008 (9) SCR 1038; Dr.
Chiranji Lal (D) by LRs. v. Hari Das (D) By LRs., (2005) 10 SCC 746 : 2005
(1) Suppl. SCR 359; Ram Bachan Rai and others v. Ram Udar Rai and others
(2006) 9 SCC 446:2006 (1) Suppl. SCR 896; Ratan Singh v. Vijay Singh and
Ors. 2000 (8) SCALE 214; Manohar v. Jaipalsing AIR 2008 SC 429: 2007 (12)
SCR 364 - relied on.
Bharti Devi v. Fagu Mahto 2009 (3) JLJR 90 : AIR 2010 Jhar 10 - held
inapplicable.
Case Law Reference:
AIR 2010 Jhar 10 held inapplicable Paras 13,26, 35
2003 (3) Suppl. SCR 629 relied on Para 18
AIR 1933 Oudh 562 approved Para 19
AIR 1945 Pat 482 approved Para 20
2003 (1) SCR 820 relied on Para 21
2006 (10) Suppl. SCR 740 relied on Para 27
2008 (9) SCR 1038 relied on Para 28
2005 (1) Suppl. SCR 359 relied on Paras 30,31
2006 (1) Suppl. SCR 896 relied on Para 31
2000 (8) SCALE 214 relied on Para 32
2007 (12) SCR 364 relied on Para 34
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2524 of 2012.
From the Judgment & Order dated 19.08.2009 of the High Court of Jharkhand
at Ranchiin Civil Revision No. 53 of 2007.
Ajit Kumar Sinha, Ambhoj umar Sinha for the Appellants.
S.S. Shamshery, Bhupendar Yadav, Babita Yadav, Bhakti Vardhan Singh, R.C.
Kohli for the Respondents.
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2524 OF 2012
(Arising out of S.L.P. (civil) No. 25038 of 2009
Bimal Kumar & Another ... Appellants
Versus
Shakuntala Debi & Others ...
Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. In this appeal, the assail is to the order dated
19.9.2009 passed by the learned single Judge of Jharkhand
High Court at Ranchi in C.R. No. 53 of 2007 by which he
has dislodged the order dated 10.7.2006 passed by the
learned Sub-Judge (I), Ranchi, whereby he had dismissed
2
the Execution Case No. 8 of 2004 filed by the respondents
as being barred by limitation.
-
3. Filtering the unnecessary details, the facts which are
requisite to be frescoed for the purpose of disposal of the
present appeal are that one Kanilal Kasera filed a Partition
Suit No. 131 of 1962 against his father, Nanak Kasera, and
other brothers. The suit was compromised leaving aside
Kishori Lal Kasera, the father of the present appellants, and
a joint petition of compromise between the plaintiff and the
defendant Nos. 1, 2, 4 to 9 and 11 to 18 was filed. It is
worth noting that Kishori Lal Kasera had appeared in the
suit and filed the written statement but thereafter chose not
to contest.
4. The petition of compromise contained that the
defendant Nos. 1, 9, 11 and 12 had relinquished and given
up all their interests in item Nos. 3 and 8 of the suit
schedule of property, being Holding No. 285 of new holding
No. 509A of Ward No. II situated on portion of Municipal
Survey Plot No. 621 and Holding No. 431 of Ward No. 1
3
situated on Municipal Survey Plot No. 902, and further
declared that they had no claim or concern with any other
properties involved in the suit; that the business, namely,
"SEVEN BROTHERS STEEL FURNITURE WORKS", item 5 of
-
the schedule, belonged exclusively to the defendant No. 2,
Moti Lal Kasera, and neither the plaintiff nor any of the
other defendants either ever had or shall ever have any
claim or interest; and that one half of the house and
premises comprised in Municipal Holding No. 431, Ward No.
1, item 3 of the schedule, and half of Holding No. 509 A of
Ward II, situated on portion of M.S. Plot No. 631, item 2 of
the schedule, shall belong to the defendant No. 2 with all
the liabilities and outstanding dues and the plaintiff and the
other defendants shall have no liabilities or interest in the
said properties; and that the business carried on under the
name of `Chotanagpur Tin Works', item 6A of the schedule,
was the sole separate business of the defendant No. 5,
Prakash Kumar Kasera, and the plaintiff or the other
defendants had no claim on the said property.
4
5. The application further contained that the partition of
the house and premises comprised in Holding No. 431 of
Ward I, item 3 of the schedule, marked in green colour in
the exhibit, shall belong exclusively to the defendant no. 4,
Mohan Lal Kasera, and neither the plaintiff nor the other
defendants shall have any claim or interest; that the -
business of iron shop at Bazaar Tan Ranchi, item 6 (c) of
the schedule, was the separate and exclusive business of
the defendant No. 6, Surendra Lal Kasera, and none others
had any claim or interest and the portion of the building
and premises comprised in Municipal Holding No. 431 of
Ward No. I, item 3 of the schedule, marked in yellow colour,
shall also belong to the defendant No. 6 and no one else had
any claim or interest; that the portion of the building and
premises comprised in Municipal Holding No. 431 of Ward
No. I, item 3 of the schedule, marked in blue colour, and
one-half of the shop premises comprised in Holding No. 509
A over portion of M.S. Plot No. 621 being item No. 2 of the
schedule to the plaint shall exclusively belong to the
plaintiff and he shall have absolute right over the same.
5
6. That apart, the plaintiff had agreed to pay up all
outstanding dues of Bindrilal Agarwalla against the
defendant No. 1 and none of the defendants shall be liable
for the same.
7. It was also agreed upon that the House situated on
Holding 6 Ward II of the Ranchi Municipality being
comprised of Khata No. 71 plot No. 72 area 61 decimal and
-
plot No. 79 area 7= decimal total area measuring 14
decimal, being item No. 4 of the schedule and the house and
premises comprised of Holding No. 180 Ward III being
survey plot No. 92 area 0.30 Karies and Municipal Survey
Plot No. 92 area 0.063 Karies total area 0.093 Karies of
Hajamtolio, Ranchi being item No. 5 were separate and
exclusive properties of Smt. Rama Devi and shall belong
exclusively to the defendant No. 7, Srimati Rama Devi, the
widow of Hira Lal Kasera, and no one else shall have any
claim or concern in the said property; that the shop
premises being holding No. 509 B of Ward II of Ranchi
Municipality situated on portion of M.S. Plot No. 621 being
6
item No. 1 of the schedule and the house premises
comprised of Holding No. 133(g) of Ward II being item No. 8
and the properties comprised Holding No. 145 A of Ward No.
I measuring 6= decimals being plot No. 268 of Khata No. 34
of Village Konka, being item No. 9 of the schedule belonged
to the defendant No. 8, Sreemati Munitri Debi, wife of
Prakash Lal Kasera, the defendant No. 5, and none had any
claim or interest; that the house and the premises situated
at Madhukam, Ranchi comprised in Holding No. 318 of -
Ward I being item No. 10 of the schedule was the property of
the defendant No. 13, Shreemati Deojani Debi, wife of Moti
Lal Kasera, the defendant No. 2.
8. It was stipulated that the business and properties
mentioned in item Nos. 6(b) and 7 were erroneously
included in the suit.
9. Be it noted, in Clause (K) of the petition of compromise,
it was clearly stated as follows: -
"k) That the parties are in separate and
exclusive possession of the properties
respectively belonging to them and have
obtained separate and exclusive possession of
7
the properties allotted to their respective
shares."
10. The learned trial Judge being satisfied accepted the
petition of compromise and passed a compromise decree on
3.4.1964 treating Kishori Lal Kasera ex parte.
11. When the matter stood thus, the legal representatives
of Kishori Lal Kasera, the present appellants, initiated a
fresh partition suit No. 49 of 1973 on the ground that the
earlier decree was obtained by fraud. In the said suit, they
claimed 1/11th share of the property for themselves which -
was involved in the earlier suit being P.S. No. 131 of 1962.
The said suit was dismissed on 27th August, 1994. Being
dissatisfied with the said decision, Kishori Lal Kasera
preferred Title Appeal No. 109 of 1994 which was dismissed
for want of prosecution on 6.1.2004. At this juncture, the
respondents herein filed execution case No. 8 of 2004
seeking execution of the decree passed in P.S. No. 131 of
1962. Be it noted, in the meantime, Kishori Lal Kasera had
breathed his last and, therefore, the execution was levied
against the legal heirs, the appellants herein.
8
12. An objection was raised by the appellants that the
execution proceeding was barred by limitation and hence,
deserved to be dismissed. The learned Sub-Judge
dismissed the execution proceedings on the ground that it
was absolutely barred by limitation.
13. Aggrieved by the said order, the respondents preferred
C.R. No. 53 of 2007 under Section 115 of the Code of Civil
Procedure (for short `the CPC') and the learned single Judge
allowed the said Revision on the ground that the execution
case preferred by the revisionists was not barred by
limitation. For the said purpose, the learned single Judge -
placed reliance on the decision in Bharti Devi v. Fagu
Mahto1. The legal substantiality of the said order is the
subject-matter of challenge in this appeal.
14. We have heard Mr. Amboj Kumar Sinha, learned
counsel for the appellants, and Mr. S.S. Shamshery, learned
counsel for the respondents.
1
2009 (3) JLJR 90 : AIR 2010 Jhar 10
9
15. The two seminal and spinal issues that had emanated
before the executing court and the High Court and have also
spiralled to this Court are whether the decree passed by the
court of first instance on the basis of compromise had
become enforceable or it had the status of a preliminary
decree requiring completion of a final decree proceeding to
make it executable and whether the execution proceeding
was untenable being hit by the law of limitation.
16. We shall advert to the first issue first. On a perusal of
the tenor of the entire compromise application, we are of the
considered view that the parties to the compromise settled
the entire controversy. The defendant No. 3 who was the
predecessor-in-interest of the present appellants was not -
allotted any share. As is perceptible from the terms of the
compromise which formed a part of the decree, the parties
had conceded that they were in separate and exclusive
possession of the properties respectively belonging to them
and further had obtained separate and exclusive possession
of the properties allotted to their respective shares. Thus,
their respective shares and exclusive possession were
admitted on the basis of the said compromise petition and a
10
decree had been drawn up. The Court had taken note of the
contents of the compromise wherein it had been prayed that
the decree be passed in accordance with the terms of the
compromise. It is clearly evincible that the Court had
proceeded on the basis that it was finally disposing of the
suit in accordance with the terms set out in the compromise
petition. The factum of exclusive possession had also been
recorded in the application of compromise. It had been
clearly stated that parties have been put in separate
possession of the various immovable properties.
17. Quite apart from the above, in the counter affidavit
filed by the respondents, it is admitted that possession had
remained with the parties as per the allotment. It is -
profitable to reproduce the said portion of the counter
affidavit:-
"It is pertinent to mention here that the parties
who were allotted the share as per the decree
were stated to be in possession of their share
and it was written in the judgment that no
preliminary, final decree or execution was
required to be filed. Though Kishori Lal
Kasera had full knowledge of the compromise
decree but he did not challenge the decree
within the period of limitation therefore the
compromise decree became final and absolute
11
against all the parties, including Kishori Lal
Kasera."
18. Despite the aforesaid, a contention has been advanced
by the learned counsel for the respondents that in a suit for
partition, drawing up of a final decree is imperative. In this
context, we may usefully refer to the decision in
Rachakonda Venkat Rao And Others v. R. Satya Bai (D)
by L.R. And Another2 wherein it has been stated as
follows:-
"The compromise application does not contain
any clause regarding future course of action
which gives a clear indication that nothing was
left for future on the question of partition of
the joint family properties. The curtain had
been finally drawn."
After so stating, the Bench proceeded to observe as follows:-
"The decree as a matter of fact leaves nothing
for future. As noticed earlier in a preliminary
decree normally the court declares the shares
of the parties and specifies the properties to be
partitioned in the event of there being a
dispute about the properties to be partitioned.
After declaring the shares of the parties and
the properties to be partitioned, the Court
appoints a Commissioner to suggest mode of
partition in terms of O. XXVI, R. 13, C.P.C. A
2
AIR 2003 SC 3322 : 2003 7 SCC 452
12
perusal of Order XXVI, R. 13 C.P.C. shows that
it comes into operation after a preliminary
decree for partition has been passed. In the
present case, there was no preliminary decree
for partition and, therefore, R. 13 of O. XXVI
does not come into operation. If the plaintiffs
considered the decree dated 13th July, 1978 as
a preliminary decree, why did they wait to
move the application for final decree
proceedings for 13 years? The only answer is
that the plaintiffs knew and they always
believed that the 1978 decree was a final
decree for partition and it was only passage of
time and change in value of the properties
which was not up to their expectations that
drove plaintiffs to move such an application."
19. In Muzaffar Husain v. Sharafat Hussain3, it has
been held as follows:-
"We think the decree passed by the civil Court
should be treated as a final order for effecting
a partition. It is true that the decree was
passed on the basis of a compromise filed by
-
the parties, but the fact remains that it was
passed in a partition suit, and had the effect
of allotting a specific portion of the property to
the plaintiff as his share in the property. The
conclusion at which we have arrived is
supported by a decision of the Madras High
Court in Thiruvengadathamiah v.
Mungiah4"
3
AIR 1933 Oudh 562
4
13
20. In Raghubir Sahu v. Ajodhya Sahu5, the Division
Bench of Patna High Court had ruled thus: -
"In the present case, the decree was passed on
compromise. It was admitted that by the
compromise, the properties allotted to the
share of each party were clearly specified and
schedules of properties allotted to each were
appended to the compromise petition.
Therefore, no further inquiry was at all
necessary. In such circumstances, the decree
did not merely declare the rights of the several
parties interested in the properties but also
allotted the properties according to the
respective shares of each party. Therefore, it
was not a preliminary decree but it was the
final decree in the suit."
21. In Renu Devi v. Mahendra Singh and others6, the
effect of a compromise decree and allotment of shares in
pursuance of the said decree was dealt with. The two-
Judge Bench referred to the decisions in Raghubir Sahu v.
Ajodhya Sahu (supra) and Muzaffar Husain (supra) and -
(1912) ILR 35 Mad 26
5
AIR 1945 Pat 482
6
AIR 2003 SC 1608
14
opined that the law had been correctly stated in the said
authorities.
22. In the said case, after referring to CPC by Mulla, this
Court, while drawing a distinction between the preliminary
and the final decree, has stated that a preliminary decree
declares the rights or shares of the parties to the partition.
Once the shares have been declared and a further inquiry
still remains to be done for actually partitioning the
property and placing the parties in separate possession of
the divided property, then such inquiry shall be held and
pursuant to the result of further inquiry, a final decree shall
be passed. A preliminary decree is one which declares the
rights and liabilities of the parties leaving the actual result
to be worked out in further proceedings. Then, as a result
of the further inquiries conducted pursuant to the
preliminary decree, the rights of the parties are finally
determined and a decree is passed in accordance with such
determination, which is the final decree. Thus,
fundamentally, the distinction between preliminary and
final decree is that: a preliminary decree merely declares the
rights and shares of the parties and leaves room for some -
15
further inquiry to be held and conducted pursuant to the
directions made in the preliminary decree which inquiry
having been conducted and the rights of the parties finally
determined a decree incorporating such determination
needs to be drawn up which is the final decree.
23. Applying the principles laid down in the aforesaid
authorities, it is graphically clear that in the case at hand,
the parties entered into a compromise and clearly admitted
that they were in separate and exclusive possession of the
properties and the same had already been allotted to them.
It was also admitted that they were in possession of their
respective shares and, therefore, no final decree or
execution was required to be filed. It is demonstrable that
the compromise application does not contain any clause
regarding the future course of action. The parties were
absolutely conscious and rightly so, that their rights had
been fructified and their possession had been exclusively
determined. They were well aware that the decree was final
in nature as their shares were allotted and nothing
remained to be done by metes and bounds. Their rights
16
had attained finality and no further enquiry from any
spectrum -
was required to be carried out. The whole thing had been
embodied in the decree passed on the foundation of
compromise.
24. It is to be borne in mind that the term `compromise'
essentially means settlement of differences by mutual
consent. In such process, the adversarial claims come to
rest. The cavil between the parties is given a decent burial.
A compromise which is arrived at by the parties puts an end
to the litigative battle. Sometimes the parties feel that it is
an unfortunate bitter struggle and allow good sense to
prevail to resolve the dispute. In certain cases, by
intervention of well-wishers, the conciliatory process
commences and eventually, by consensus and concurrence,
rights get concretised. A reciprocal settlement with a clear
mind is regarded as noble. It signifies magnificent and
majestic facets of the human mind. The exalted state of
affairs brings in quintessence of sublime solemnity and
social stability. In the present case, as the factual matrix
would reveal, a decree came to be passed on the bedrock of
17
a compromise in entirety from all angles leaving nothing to
be done in the future. The curtains were really drawn and
-
the Court gave the stamp of approval to the same. Thus,
the inescapable conclusion is that the compromise decree
dated 03.04.1964 was a final decree.
25. Presently, we shall dwell upon the issue whether the
execution levied by the respondents was barred by
limitation or not. The executing Court, by its order dated
10.07.2006, accepted the plea of the present appellants and
came to hold that the execution petition filed by the decree
holder was hopelessly barred by limitation. In the Civil
Revision, the learned Single Judge overturned the decision
on several counts; (i) that no steps were taken and no
objection was raised by the father of the opposite parties for
setting aside the ex parte decree passed in the first suit, if
he was aggrieved by it, for about 9 years, though he had
appeared and had full knowledge about the first suit; (ii)
that as per the compromise decree, the parties were in
possession of the respective shares allotted to them and,
18
accordingly, neither preliminary nor final decree was drawn
up and there was no occasion for the petitioners for filing
execution case for enforcement of the compromise decree;
(iii) that the second suit challenging the compromise decree
-
passed in the first suit remained pending for about 21
years; (iv) that the appeal filed against the dismissal of the
second suit also remained pending for about 10 years; (v)
that after the appeal was dismissed and the judgment and
decree passed in the second suit became final, the execution
case was filed by the petitioner alleging dispossession from
the family business being run in the ground floor of the
building; and (vi) that on the basis of such allegation, the
compromise decree passed in the first suit became
enforceable.
26. Apart from the aforesaid reasons, the learned Single
Judge has opined that after the execution case was
admitted by the predecessor of the learned Sub-Judge
presumably after condoning the delay, the successor should
not have dismissed it on the ground of limitation. He placed
19
reliance on the decision rendered in Bharti Devi (supra)
and buttressed the reasoning that there was no delay in
levying of the execution proceeding. The learned single
Judge further took note of the pending Misc. Appeal No. 369
of 2008 preferred by the present appellants to reinforce the
conclusion.
-
27. It is well settled in law that a preliminary decree
declares the rights and liabilities, but in a given case, a
decree may be both preliminary and final and that apart, a
decree may be partly preliminary and partly final. It has
been so held in Rachakonda Venkat Rao v. R. Satya
Bai7. It is worth noting that what is executable is a final
decree and not a preliminary decree unless and until the
final decree is a part of the preliminary decree. That apart,
a final decree proceeding may be initiated at any point of
time. It has been so enunciated in Hasham Abbas Sayyad
v. Usman Abbas Sayyad and others8.
7
(2003) 7 SCC 452
8
20
28. In Bikoba Deora Gaikwad and others v. Hirabai
Marutirao Ghorgare and others9, a two-Judge Bench of
this Court has held that only when a suit is completely
disposed of, thereby a final decree would come into being.
In the said case, it has also been laid down that an
application for taking steps towards passing a final decree is
not an execution application and further, for the purposes
of construing the nature of the decree, one has to look to -
the terms thereof rather than speculate upon the court's
intention.
29. Regard being had to the aforesaid principles and
having opined that the decree passed on the basis of a
compromise in the case at hand is the final decree, it is to
be addressed whether the execution is barred by limitation.
Article 136 of the Limitation Act (for brevity `the Act') reads
as follows: -
"Description of Period of Time from which period begins
application to run
(2007) 2 SCC 355
9
(2008) 8 SCC 198
21
Limitation
136. For the Twelve When the decree or order
execution of any years becomes enforceable or where
decree (other the decree or any subsequent
than a decree order directs any payment of
granting a money or the delivery of any
mandatory property to be made at a
injunction) or certain date or at recurring
order of any periods, when default in
civil court. making the payment or
delivery in respect of which
execution is sought, takes
place;
Provided that an application
for the enforcement or
execution of a decree granting
a perpetual injunction shall
not be subject to any period of
limitation."
30. On a perusal of the said Article, it is quite vivid that an
application for execution of a decree (other than a decree -
granting a mandatory injunction) or order of any civil court
is to be filed within a period of twelve years. In Dr.
Chiranji Lal (D) by LRs. v. Hari Das (D) By LRs.,10 the
question arose whether a final decree becomes enforceable
only when it is engrossed on the stamp paper. The three-
Judge Bench dealing with the controversy has opined that
10
(2005) 10 SCC 746
22
Article 136 of the Limitation Act presupposes two conditions
for the execution of the decree; firstly, the judgment has to
be converted into a decree and secondly, the decree should
be enforceable. The submission that the period of limitation
begins to run from the date when the decree becomes
enforceable, i.e., when the decree is engrossed on the stamp
paper, is unacceptable. The Bench, while elaborating the
said facet, proceeded to lay down as under: -
"24. A decree in a suit for partition declares the rights of the
parties in the immovable properties and divides the shares by
metes and bounds. Since a decree in a suit for partition creates
rights and liabilities of the parties with respect to the immovable
properties, it is considered as an instrument liable for the
payment of stamp duty under the Indian Stamp Act. The object of
the Stamp Act being securing the revenue for the State, the
scheme of the Stamp Act provides that a decree of partition not
duly stamped can be impounded -
and once the requisite stamp duty along with penalty, if any, is
paid the decree can be acted upon.
25. The engrossment of the final decree in a suit for partition
would relate back to the date of the decree. The beginning of the
period of limitation for executing such a decree cannot be made
to depend upon date of the engrossment of such a decree on the
stamp paper. The date of furnishing of stamp paper is an
uncertain act, within the domain, purview and control of a party.
No date or period is fixed for furnishing stamp papers. No rule
has been shown to us requiring the court to call upon or give any
time for furnishing of stamp paper. A party by his own act of not
furnishing stamp paper cannot stop the running of period of
limitation. None can take advantage of his own wrong. The
proposition that period of limitation would remain suspended till
stamp paper is furnished and decree engrossed thereupon and
23
only thereafter the period of twelve years will begin to run would
lead to absurdity. In Yeshwant Deorao Deshmukh v.
Walchand Ramchand Kothari [1950 SCR 852 : AIR 1951 SC
16] it was said that the payment of court fee on the amount
found due was entirely in the power of the decree holder and
there was nothing to prevent him from paying it then and there;
it was a decree capable of execution from the very date it was
passed.
26. Rules of limitation are meant to see that parties do not resort
to dilatory tactics, but seek their remedy promptly. As
abovenoted, there is no statutory provision prescribing a time
limit for furnishing of the stamp paper for engrossing the decree
or time limit for engrossment of the decree on stamp paper and
there is no statutory obligation on the Court -
passing the decree to direct the parties to furnish the stamp
paper for engrossing the decree. In the present case the Court
has not passed an order directing the parties to furnish the
stamp papers for the purpose of engrossing the decree. Merely
because there is no direction by the Court to furnish the stamp
papers for engrossing of the decree or there is no time limit fixed
by law, does not mean that the party can furnish stamp papers
at its sweet will and claim that the period of limitation provided
under Article 136 of the Act would start only thereafter as and
when the decree is engrossed thereupon. The starting of period of
limitation for execution of a partition decree cannot be made
contingent upon the engrossment of the decree on the stamp
paper."
31. In Ram Bachan Rai and others v. Ram Udar Rai
and others11, a contention was advanced to the effect that
as the cost for enforcement of decree was not quantified, the
period of limitation could not have commenced from the
11
(2006) 9 SCC 446
24
date of judgment and decree. The Court referred to the
decision in Dr. Chiranji Lal (supra) and, after referring to
paragraphs 24 and 25 of the said decision, expressed the
view in unequivocal terms that the inevitable conclusion
was that the suit was barred by limitation.
-
32. In the present case, the learned counsel for the
respondents, in support of the order passed in Civil
Revision, has canvassed that when a suit was filed for
declaring the earlier compromise decree to have been
obtained by fraud and the same remained pending for more
than 21 years, the period of limitation commenced only after
the suit and the appeal arising therefrom were dismissed
since only on the conclusion of the said proceeding, the
decree became enforceable and further, the time consumed
in the said proceeding is to be excluded for computation of
the period of limitation under Article 136 of the Limitation
Act. We have already held that the decree was a final
decree. Therefore, it was immediately executable. The
question, thus, would be `was the time arrested?' On a
25
query being made, it was fairly conceded at the Bar that at
no point of time, there was any order by any court directing
stay of operation of the judgment and decree passed in P.S.
No. 131 of 1962. The question that emanates for
consideration is whether the period during which the suit
and appeal preferred by the appellants remained pending is
to be excluded for the purpose of limitation. In this context,
-
we may usefully refer to the dictum in Ratan Singh v.
Vijay Singh and Ors.12 wherein, while dwelling upon the
concept of enforceability of a decree and the effect of an
order of stay passed by the appellate court, the Bench
stated thus:
"8. When is a decree becoming enforceable?
Normally a decree or order becomes
enforceable from its date. But cases are not
unknown when the decree becomes
enforceable on some future date or on the
happening of certain specified events. The
expression "enforceable" has been used to
cover such decrees or orders also which
become enforceable subsequently.
12
2000 (8) SCALE 214
26
9. Filing of an appeal would not affect the
enforceability of the decree, unless the
appellate court stays its operation. But if the
appeal results in a decree that would
supersede the decree passed by the lower
court, it is the appellate court decree which
becomes enforceable. When the appellate order
does not amount to a decree there would be no
supersession and hence the lower court decree
continues to be enforceable."
33. In Ram Bachan Rai (supra), the two-Judge Bench
took note of the fact that an application under Order IX
Rule 13 for setting aside the ex parte decree was dismissed
which was assailed in a miscellaneous appeal and -
ultimately in a civil revision. At no stage, stay was granted
by any court. The decree holders therein filed an
application for execution after 12 years. Regard being had
to the same, it was held that the execution proceeding was
barred by limitation.
34. In this context, it is fruitful to refer to the
pronouncement in Manohar v. Jaipalsing13. In the said
case, it has been held as follows:
13
AIR 2008 SC 429
27
"15. The order of purported stay passed by this
Court in terms of its Order dated 21.3.1988 is
also of no assistance to the plaintiff decree-
holder. The Special Leave Petition was filed
only against the Order dated 1.7.1985 refusing
to review its judgment and decree dated
2.9.1983. The stay of operation of the Order
dated 1.7.1985 for all intent and purport was
meaningless as the review petition already
stood dismissed.
16. Further direction of this Court that
computation of mesne profit would go on and
the same would be deposited by the appellant
is of no consequence inasmuch as by reason
thereof neither proceeding was stayed nor had
the operation of the judgment and decree been
stayed. In fact, it was an order passed in
favour of the decree holder. The said direction
did not come in his way to execute the decree
for possession."
-
35. In the case at hand, the compromise decree had the
status of a final decree. The latter suit filed by the
appellants was for partition and declaring the ex parte
compromise decree as null and void. As has already been
stated, there was no stay of the earlier judgment or any
proceedings emanating therefrom. In the absence of any
interdiction from any court, the decree-holder was entitled
to execute the decree. It needs no special emphasis to state
that there was no impediment or disability in the way of the
28
respondents to execute the decree but the same was not
done. Therefore, the irresistible conclusion is that the
initiation of execution proceedings was indubitably barred
by limitation. Thus analyzed, the reasons ascribed by the
learned single Judge are absolutely unsustainable. The
period of limitation stipulated under Article 136 of the Act
could not have been condoned as has been so presumed by
the learned single Judge. The reliance placed on the
decision in Bharti Devi (supra) is totally misconceived
inasmuch as in the said case, the execution proceeding was
initiated for permanent injunction. No exception can be -
taken to the same and, therefore, reliance placed on the
said decision is misconceived.
36. Ex consequenti, the appeal is allowed, the order passed
by the High Court in Civil Revision is set aside and that of
the executing court is restored. The parties shall bear their
respective costs.
.....................................J.
29
[Dalveer Bhandari]
.....................................J.
[Dipak Misra]
New Delhi;
February 27, 2012.
