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Monday, June 27, 2016

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.

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.