[2009] 14 (ADDL.) S.C.R. 40
A SHUB KARAN BUBNA @ SHUB KARAN PRASAD -1
BUB NA
v.
SITA SARAN BUBNA & ORS.
(Special Leave Petition (C) No.17932 of 2009)
B AUGUST 21, 2009
[R.V. RAVEENDRAN AND B. SUDERSHAN REDDY, JJ.]
CODE OF CIVIL PROCEDURE, 1908:.
c
ss.2(20) and 54, 0. 20 r. 18, 0. 26 r. 13 - Partition suit -
Preliminary decree passed - Application for final decree - .....
Resisted on the ground of limitation - HELD: Where an
application does not invoke the jurisdiction of court to grant ....
;.--
.D any fresh relief based on a new cause of action, but merely ... reminds or requests the· court to do its duty by completing the
remaining part of the pending suit, there is no question of any
limitation - Such an application is not one to which Limitation
Act would apply - As declaration of rights or shares is only
E the first stage in a suit for partition, a preliminary decree does
not have the effect of disposing of the suit - Suit continues to
be pending until partition, that is, division by metes and )'
bounds, takes place by passing a final decree - An
application requesting the court to take necessary steps to
F
draw up a final decree effecting a division in terms of the
preliminary decree is neither an application for execution
(falling under Article 136 of Limitation Act) nor an application
seeking a fresh relief (falling under Article 137 of Limitation
Act) - Code does not contemplate filing of an application for
final decree - Therefore, when a preliminary decree is passed
G in a partition suit, the proceedings should be continued by
fixing·dates for further proceedings till a final decree is passed 'f-
-It is the duty and function of the court which in the normal
course has to be performed by the court itself as a
continuation of the preliminary decree - Performance of such
H 40
SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA 41
v. SITA SARAN BUBNA
function does not require a reminder or nudge from the litigant A
- The mindset should be to expedite the process of dispute
resolution - The application filed by plaintiff for drawing up of
a final decree was rightly held to be not subject to any period
of limitation - Court concerned would expedite the final
decree proceedings - Limitation. 8
La/ta Prasad v. Brahma Din AIR 1929 Oudh 456;
Ramabai Govind v. Anant Daji AIR 1945 Born. 338; Abdul
Kareem Sab v. Gowlivada S. Silar Saheb AIR 1957 AP 40;
A. Manjundappa v. Sonnappa & Ors. AIR 1965 Kar. 73; c Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors. AIR 1983
Orissa 121; Laxmi v. A.Sankappa Alwa AIR 1989 Ker. 289;
--', Phoolchand vs. Gopal Lal AIR 1967 SC 1470; Hasham -:::r Abbas Sawad v. Usman Abbas Sayyad & Ors. 2007 (2) SCC -( 355; and Bikoba Deora Gaikwad v. Hirabai Marutirao .... Ghorgare 2008 (8) sec 198, relied on D
DECREE - Preliminary decree and final decree -
Concept of, in the context of partition suits and mortgage suits
- HELD: There is a fundamental difference between mortgage
suits and partition suits - In a preliminary decree in a E
mortgage suit (whether a decree for foreclosure under r.2 or
-\ a·decree for sale under r.4 of 0 34 CPC), the amount due is·
.. determined and declared and the time within which the amount
has to be paid is also fixed and the consequence of nonpayment within the time stipulated is also specified - A F
preliminary decree in a mortgage suit decides all the issues
and what is left out is only the action to be taken in the event
of non-payment of the amount- When the amount is not paid,
plaintiff gets a right to seek a final decree for foreclosure or
for sale - On the other hand, in a partition suit the preliminary G decree only decides a part of the suit and, therefore, an
application for passing a final decree is only an application
in a pending suit, seeking further progress - In partition suits,
- there can be a preliminary decree followed by a final decree,
. or there can be a decree which is a combination of
H
42 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A preliminary decree and final decree or there can be merely a
single decree with certain further steps to be taken by the court
- In fact several applications for final decree are permissible
in a partition suit - The application for final decree as and
when made is considered to be an application in a pending
B suit for granting the relief of division by metes and bounds -
Therefore, the concept of final decree in a partition suit is
different from the concept of final decree in a mortgage suit -
Consequently, an application for a final decree in a mortgage
suit is different from an application for final decree in a
c partition suit.
SUIT:
Suit for partition - Partition - Concept of - HELD:
'Partition' is a re-distribution or adjustment of pre-existing )-
D rights, among co-owners/coparceners, resulting in a division
of lands or other properties jointly 'held by them, into different
lots or portions and delivery thereof to the respective allottees
- The effect of such division is that the joint ownership is
terminated and the respective shares vest in them in severalty
E - A partition of a property can be only among those having a
share or interest in it - A person who does not have a share
>- in such property cannot obviously be a party to partition - ' /
'Separation of share' is a species of 'partition' - When all co- '
owners get separated, it is a partition - Separation of share/s
F refers to a division where only one or only a few among several
co-ownerslcoparceners get separated, and others continue to
be joint or continue to hold the remaining property jointly
without division by metes and bounds - In a suit for partition
or separation of a share, the prayer is not only for declaration
G
of plaintiff's share in the suit properties, but also division of
his share by metes and bounds - This involv(!]s three issues + , (i) whether the person seeking division has a share or interest
in the suit property/properties; (ii) whether he is entitled to the
relief of division and separate possession; and (iii) how and
H
in what manner the property/properties should be divided by
metes and bounds.
.. '-..'
7
~
~
..
-tSHUB KARAN BUBNA @ SHUB KARAN PRASAD
BUBNA v. SITA SARAN BUBNA
LEGISLATION:
43
Suit - Filing of suit and securing relief to litigant -
Proceedings in between - Need for legislation to avoid
multiplicity of proceedings - HELD: Cases have been found
where a suit is decreed or a preliminary decree is granted
within a year or two and the final decree proceeding and
execution takes decades for completion - This is an area
which contributes to considerable delay and consequential
loss of credibility of the civil justice system - Courts and
lawyers should give as much_ importance to final decree:
proceedings and executions, as they give to the main suits -
A conceptual change regarding civil litigation, is required so
that the emphasis is not only on disposal of suits, but also
on securing relief to the litigant - It is hoped that the Law
Commission and Parliament will bestow their attention on this
issue and make appropriate recommendations/amendments
so that the suit will be a continuous process from the stage of
its initiation to the stage of securing actual relief- The present
system involving a proceeding for declaration of the right, a
separate proceeding for quantification or ascertainment of
relief, and another separate proceeding for enforcement of the
decree to secure the relief, is outmoded and unsuited for
present requirements - The Code of Civil Procedure should
provide for a continuous and seamless process from the stage
of filing of suit to the stage of getting relief - In so far final
decree proceedings are concerned, there is no reason for
even legislative intervention - As the provisions of the Code
stand as on date, initiation of final decree proceedings does
not depend upon an application for final decree for initiation
(unless the local amendments require the same) - Practice
and Procedure.
Case Law Reference:
AIR 1929 Oudh 456 relied on para 8
AIR 1945 Born. 338 relied on pa~a 8
A
B
c
D
E
F
'
G
H
-44 SUPREME COURT REPORTS (2009] 14 (ADDL.) S.C.R.
A AIR 1957 AP 40 relied on para 8
AIR 1965 Kar. 73 relied on para 8
AIR 1983 Orissa 121 relied on para 8
B AIR 1989 Ker. 289 relied on para 8
AIR 1967 SC 1470 relied on para 8
2001 (2) sec 355 relied on para 8
2008 (8) sec 198 relied on para 8
c
CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
17932/2009.
From the Judgment and Order dated 15.1.2009 of the High ... Court of Judicature.at Patna in C.R. No. 2216/2008 .. 'r
D
S.B. Sanyal and Subhro Sanyal for the Petitioner.
The Order of the Court was delivered by
-
E
R.V. RAVEENDRAN, J. The first respondent and his
mother filed a suit for p~rt!t:on against _getitioner and two others
in the year 1960 in the court of the First Additional Judge, fMuzaffarnagar, for partition and separate possession of their
r
one-third share in the plaint schedule properties and for ..rendition of accounts. The suit was in respect of three nonF agricultural plots and some movables. After contest the suit was
decreed on 25.2.1964 directing a preliminary decree for .....
partition be drawn in regard to the one-third share of the
plaintiffs in the said plots and a final decree be drawn up
through appointment of a Commissioner for actual division of
G the plots by metes and bounds.
-r
2. Feeling aggrieved the petitioner (and others) filed an
appeal before the Patna High Court which was dismissed on
29.3.197 4. The first respondent filed an application on 1.5.1987
H for drawing up a final decree. The petitioner filed an application
SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA 45
v. SITA SARAN BUBNA [R.V. RAVEENDRAN, J.]
~·
on 15.4.1991 to drop the final decree proceedings as it was A
barred by limitation. The said application was dismissed by the
trial court holding that once the rights/shares of the plaintiff had
been finally determined by a preliminary decree, there is no
limitation for an application for affecting the actual partition/
division in accordance with the preliminary decree, as it should B
be considered to be an application made in a pending suit. The
said order was challenged by the petitioner in a revision petition
which was dismissed by the High Court order dated 15.1.2009.
The petitioner has filed this special leave petition seeking leave
to appeal against the said decision of the High Court. c
3. The appellant contends that when a preliminary decree
..... is passed in a partition suit, a right enures to the plaintiff to
~ apply for a final decree for division of the suit property by metes
' and bounds; that whenever an application is made to enforce
D /
a right or seeking any relief, such application is governed by
the law of limitation; that an application for drawing up a final
decree would be governed by the residuary Article 137 of
Limitation Act, 1963 ('Act' for short) which provides a period
of limitation of three years; that as such right to apply accrues
on the date of the preliminary decree, any application filed E
-\, beyond three years from the date of preliminary decree (that
111111( is 12.3.1964) or at all events beyond three years from the date
when the High Court dismissed the defendant's appeal (that
is 29.3.1974) would be barred by limitation. Reliance was
placed by the petitioner on the decision of this Court in Sita/ F
Parshad v. Kishori Lal [AIR 1967 SC 1236], the decision of
the Privy Council in Saiyid Jawad Hussain v. Gendan Singh
[AIR 1926 PC 93) and a decision of the Patna High Court in
Thakur Pandey v. Bundi Ojha [AIR 1981 Patna 27) in support
of his contention. G i'
The issue:
4. 'Partition' is a re-distribution or adjustment of preexistin!J rights, among co-owners/coparceners, resulting in a
division of lands or other properties jointly held by them, into H
46 SUPREME COURT REPORTS [2009] 14 (ADDL:) ·s.C.R.
A different lots or portions and delivery thereof to the respective --!
allottees. The effect of such division is that the joint ownership
is terminated and the respective shares vest in them in
severalty. A partition of a property can be only among those
having a share or interest in it. A person who does not have a
B share in such property cannot obviously be a party to a partition.
'Separation of share' is a species of 'partition'. When all coowners get separated, it is a partition. Separation of share/s
refers to a division where only one or only a few among several
co-owners/coparceners get separated, and others continue to
c be joint_ or continue to hold the remaining property jointly without
division by metes and bounds. For example, where four brothers
owning a property divide it among themselves by metes and
bounds, it is a partition. But if only one brother wants to get his
share separated and other three brothers continue to remain )r
D joint, there is only a separation of the share of one brother. In a
suit for partition or separation of a share, the prayer is not only
/
'
for declaration of plaintiffs share in the suit properties, but also
division of his share by metes and bounds. This involves three
issues: (i) whether the person seeking division has a share or
E interest in the suit property/properties; (ii) whether he is entitled
to the relief of division and separate possession; and (iii) how
and in what manner, the property/properties should be divided !-
by metes and bounds? r
'
5. In a suit is for partition or separation of a share, the court
F at the first stage decides whether the plaintiff has a share in
the suit property and whether he is entitled to division and
separate possession. The decision on these two issues is
exercise of a judicial function and results in first stage decision
termed as 'decree' under Order 20 Rule 18(1) and termed as
G 'preliminary decree' under Order 20 Rule 18(2) of the Code.
The consequential division by metes and bounds, considered -rto be a ministerial or administrative act requiring the physical
inspection, measurements, calculations and considering
various permutations/ combinations/alternatives of division is
H referred to the Collector under Rule 18( 1) and is the subject
SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA 4 7
v. SITA SARAN BUBNA [RV. RAVEENDRAN, J.]
' ,._ matter of the final decree under Rule 18(2). The question is A
whether the provisions of Limitation Act are inapplicable to an
application for drawing up a final decree.
6. Rule 18 of Order 20 of the Code of Civil Procedure
('Code' for short) deals with decrees in suits for partition or 8
separate possession of a share therein which is extracted
below:
'f "18. Decree in suit for partition of property or separate
possession of a share therein.- Where the Court passes
a decree for the partition of property or for the separate c
possession of a share therein, then, -
(1) if and in so far as the decree relates to an estate
'f'
assessed to the payment of revenue to the Government,
' the decree shall declare the rights of the several parties D :-> interested in the property, but shall direct such partition or '
I separation to be made by the Collector, or any gazetted
subordinate of the Collector deputed by him in this behalf,
in accordance with such declaration and with the provisions
of section 54; E
"""'
(2) if and in so far as such decree relates to any other
immovable property or to movable property, the Court
may, if the partition or separation cannot be conveniently
made without further inquiry, pass a preliminary decree
declaring the rights of the several parties, interested in the F
.. property and giving such further directions as may be
required."
The terms 'preliminary decree' and 'final decree' used in
the said rule are defined in Explanation to section 2(2) of the
Code and reads thus :
G
"A decree is preliminary when further proceedings have to
be taken before the suit can be completely disposed of. It
is final when such adjudication completely disposes of the
H
48 SUPREME COURT.REPORTS [2009] 14 (ADDL.) S.C.R.
-'
A suit. It may be partly preliminary and partly final." 1 '
r~Section 54 of the Code dealing with partition of estate or
separation of share, relevant for purposes of Rule 18(1) reads
thus:
B "Where the decree is for the partition of an undivided
estate assessed to the payment of revenue of the f"
government, or for the separate possession of a share of
such an estate, the partition of the estate or the sepa'ration
)-
of the share shall be made by the Collector or any gazetted
c sub-ordinate of the Collector deputed by him in this behalf,
in accordance with the law (if any) for the time being in I>
force relating to the partition, or the separate possession
of shares, of such estates." ,
\
y
D Rule 13 of Order 26 of the Code dealing with ~Commissions to make partition of immovable property, relevant '.
for purposes of Rule 18(2) reads thus:
"Where a preliminary decree for partition has been
E
passed, the Court may, in any case not provided for by
section 54, issue a commission to such person as it thinks
fit to make the partition or separation according to the r
rights as declared in such decree."
7 .. We may now turn to the provisions of the Limitation Act,
F 1963. Section 3 of the Act provides that subject to sections 4 }
to 24, every suit instituted, appeal preferred and application ...
~
made after the prescribed period shall be dismissed. The term t
'period of limitation' is defined as the period of limitation t prescribed for any suit, appeal or application by the Schedule
G to the Act (vide clause (j) of section 2 of the Act). The term
"prescribed period" is defined as the period of limitation ' ,.. ~
computed in accordance with the provisions of the said Act.
The Third Division of the Schedule to the said Act prescribes
the periods of limitatio'n for Applications. The Schedule does
H not contain any Article prescribing the limitation for an
-.
v
~
.
.. ..,,
.. '(
...;
......
SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA 49
v. SITA SARAN BUBNA [R.V. RAVEENDRAN, J.]
application for drawing up of a final decree. Article 136 A
prescribes the limitation for execution of any decree or order
of civil court as 12 years when the decree or order becomes
enforceable. Article 137 provides that for any other application
for which no period of limitation is provided elsewhere in that
division, the period of limitation is three years which would begin 8
to run from the time when the right to. apply accrues. It is thus
clear that every application which seeks to enforce a right or
seeks a remedy or relief on the basis of any cause of action in
a civil court, unless otherwise provided, will be subject to the
law of limitation. But where an application does not invoke the c
jurisdiction of the court to grant any fresh relief based on a new
cause of action, but merely reminds or requests the court to do
its duty by completing the remaining part of the pending suit,
there is no question of any limitation. Such an application in a
suit which is already pending, which contains no fresh or new
prayer for relief is not one to which Limitation Act, 1963 would D
apply. These principles are evident from the provisions of the
Code and the Limitation Act and also settled by a series of
judgments of different High Court over the decades (See : for
example, La/ta Prasad vs. Brahma Din [AIR 1929 Oudh 456], E Ramabai Govind v. Anant Daji [AIR 1945 Born. 338], Abdul
Kareem Sab vs. Gow/ivada S. Sitar Saheb [AIR 1957 AP 40],
A. Manjundappa v. Sonnappa & Ors. [AIR 1965 Kar. 73],
Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors. [AIR 1983
Orissa 121], Laxmi v. A.Sankappa Alwa [AIR 1989 Ker. 289].
We may F also draw support from the judgments of this Court in
. Phoolchand vs. Gopal Lal [AIR 1967 SC 1470], Hasham
Abbas Sayyad v. Usman Abbas Sayyad & Ors. [2007 (2)
SCC 355] and Bikoba Deora Gaikwad v. Hirabai Marutirao
Ghorgare [2008 (8) SCC 198].
G
8. Once a court passes a preliminary decree, it is the duty
of the court to ensure that the matter is referred to the Collector
or a Commissioner for division unless the parties themselves
agree as to the manner of division. This duty in the normal
course has to be performed by the court itself as a continuation H
50 SUPREME COl}RT REPORTS (2009) 14 (ADDL.) S.C.R.
'<>·
i
A of the preliminary decree. Sometimes either on account of the -1
pendency of an appeal or other circumstances, the court
passes the decree under Rule 18(1) or a prelim.inary decree
under Rule 18(2) and the matter goes into storage to be.revived >
only when an application is made by any of the parties, drawing \
B its attention to the pending issue and the need for referring the
matter either to the Collector or a Commissioner for actual
division of the property. Be that as it may.·
9. The following principles emerge from the above """
c
discussion regarding partition suits :
(9.1.) In regard to estates assessed to payment of revenue '~to the government (agricultural land), the court is required to
pass only one decree declaring the rights of several parties
interested in the suit property with a direction to the Collector y
D (or his subordinate) to effect actual partition or separation in
accordance with the declaration made by the court in regard
to the shares of various parties and deliver the respective
portions to them, in accordance with section 54 of Code. Such
entrustment to the Collector under law was for two reason$. First
E is that Revenue Authorities are more conversant with matters
relating to agricultural lands. Second is to safeguard the ' interests of government in regard to revenue. (The second ~ \.
,.
reason, which was very important in the 19th century and early . .,
20th century when the Code was made, has now virtually lost
F its relevance, as revenue from agricultural lands is negligible).
Where the Collector acts in terms of the decree, the matter
does not come back to the court at all. The court will not interfere l
with the partitions by the Collector, except to the extent of any ccomplaint of a third party affected thereby.
G (9.2.) In regard to immovable properties (other than
agricultural lands paying land revenue), that is buildings, plots -i,- .__>-etc. or movable properties:
(i) where the court can conveniently and without further renquiry make the division without the assistance of any .,.._H '
""""
_.
.. ,
...
I
1
SHUB KARAN BUBNA@ SHUB KARAN PRASAD BUBNA 51
v. SITA SARAN BUBNA [RV. RAVEENDRAN, J.]
Commissioner, or where parties agree upon the manner
of division, the court will pass a single decree comprising
the preliminary decree declaring the rights of several
parties and also a final decree dividing the suit properties
by metes and bounds.
(ii) where the division by metes and bounds cannot be
made without further inquiry, the court will pass a
preliminary decree declaring the rights of the parties
interested in the property and give further directions as
may be required to effect the division. In such cases,
normally a Commissioner is appointed (usually an
Engineer, Draughtsman, Architect, or Lawyer) to physically
examine the property to be divided and suggest the
manner of division. The court then hears the parties on the
report, and passes a final decree for division by metes and
bounds.
The function of making a partition or separation according to
the rights declared by the preliminary decree, (in regard to nonagricultural immovable properties and movables) is entrusted
to a Commissioner, as it involves inspection of the property and
examination of various alternatives with reference to practical
J-Utility and site conditions. When the Commissioner gives his
1!><J report as to the manner of division, the proposals contained in
C><i the report are considered by the court; and after hearing
~ objections to the report, if any, the court passes a final decree
~ whereby the relief sought in the suit is granted by separating
ci the property by metes and bounds. It is also possible that if the
property is incapable of proper division, the court may direct
sale thereof and distribution of the proceeds as per the shares
declared.
(9.3.) As the declaration of rights or shares is only the first
stage in a suit for partition, a preliminary decree does not have
the effect of disposing of the suit. The suit continues to be
pending until partition, that is division by metes and bounds,
A
e
c
0
E
F
G
H
52 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.
A takes place by passing a final decree. An application 1
requesting the court to take necessary steps to draw up a final
I
decree effecting a division in terms of the preliminary decree, ....is neither an application for execution (falling under Article 136
of the Limitation Act) nor an application seeking a fresh relief
B (falling under Article 137 of Limitation Act). It is only a reminder
to the court to do its duty to appoint a Commissioner, get a .
report, and draw a final decree in the pending suit so that the
suit is taken to its logical conclusion. '"'
c
10. The three decisions relied on by the petitioner (refem~d
to in para 3 above) are not relevant for deciding the issue
arising in t~is case. They all relate to suits for mortgage and ......not partition. There is a fundamental difference between
mortgage suits and partition suits. In a preliminary decree in a
mortgage suit (whether a decree for foreclosure under Rule 2 y
D or a decree for.sale under Rule 4 of Order 34 of the Code), :'
the amount due is determined and declared and the time within
which the amount has to be. paid is also fixed and the
consequence of.non payment within the time stipulated is also
specified. A preliminary decr:.ee in a mortgage suit decides all
E the issues and what is left out is only the action to be taken in
the event of non payment of the amount. When the amount is
;· not paid the plaintiff gets a right to seek a final decree for " foreclosure or for sale. On the other hand, in a partition suit the ~preliminary decrees only decide a part of the suit and therefore
F an application for passing a final decree is only an application
in ~ pending suit, seeking further progress. In partition suits,
there can be a preliminary decree followed by a final decree,
or there can be a decree which is a combination of preliminary
decree and final decree or there can be merely a single decree
G with certain further steps to be taken by the court. In fact several
applications for final decree are permissible in a partition suit. ·~
A decree in a partition suit enures to the benefit of all the coowners and therefore, it is sometimes said that there is really
no judgment-debtor in a partition decree. A preliminary decree
H for partition only identifies the properties to be subjected to
~
I
SHUB KARAN BUBNA @ S!::iUB KARAN PRASAD BUBNA 53
v. SITA SARAN BUBNA [RV. RAVEENDRAN, J.]
~
partition, defines and declares the shares/rights of the parties: A
That part of the prayer relating to actual division by metes and
bounds and· allotment is left for being completed under the final
decree proceedings. Thus the application for final decree as
and when made is considered to be an application in a pending
suit for granting the relief of division by metes and bounds. B
Therefore, the concept of final decree in a partition suit is
different from the concept of final decree in a mortgage suit.
Consequently an application for a final decree in a mortgage
suit is different from an application for final decree in partition
suits. c .,..., A suggestion for debate and legislative action
.._.. 11. The century old civil procedure contemplates
judgments, decrees, preliminary decrees and final decrees and
execution of decrees. They provide for a 'pause' between a D
decree and execution. A 'pause' has also developed by
practice between a preliminary decree and a final decree. The
'pause' is to enable the defendant to voluntarily comply with the
decree or declaration contained in the preliminary decree. The
ground reality is that defendants normally do not comply with E
°l\ decrees without the pursuance of an execution. In very few
cases, the defendants in a partition suit, voluntarily divide the
property on the passing of a preliminary decree. In very few
cases, defendants in money suits, pay the decretal amount as
per the decrees. Consequently, it is necessary to go to the F
second stage that is levy of execution, or applications for final
decree followed by levy of execution in almost all cases.
12. A litigant coming to court seeking relief is not interested
in receiving a paper decree, when he succeeds in establishing
G ..,. his case. What he wants is relief. If it is a suit for money, he
wants the money. If it is a suit for property, he wants the.
property. He naturally wonders why when he files a suit for
recovery of money, he should first engage a lawyer and obtain
a decree and then again engage a lawyer and execute the
decree. Similarly, when he files a suit for partition, he wonders H
54 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A why he has to first secure a preliminary decree, then file an -+ '
application and obtain a final decree and then file an execution
to get the actual relief. The common-sensical query is: why not
a continuous process? The litigant is perp_lexed as to why when
a money decree is passed, the court does not fix the date for
B payment and if it is not paid, proceed with the execution; when
a preliminary decree is passed.in a partition suit, why the court
does not forthwith fix a date for appointment of a Commissioner
for division and make a final decree and deliver actual 'r· !
possession of his separated share. Why is it necessary for him
c to remind the court and approach the court at different stages?
13. Because of the artificial division of suits into preliminary ........
decree proceedings, final decree proceedings and execution
proceedings, many Trial judges tend to believe that adjudication
of the right being the judicial function, they should concentrate T
D on that part. Consequently, adequate importance is not given
to the final decree proceedings and execution proceedings
which are considered to be ministerial functions. The focus is
on disposing of cases, rather than ensuring that the litigant gets
the relief. But the focus should not only be on early disposal of
E cases, but also on early and easy securement of relief for
which the party approaches the court. Even among lawyers, I
importance is given only to securing of a decree, not securing
of relief. Many lawyers handle suits only till preliminary decree
is made, then hand it over to their juniors to c~nduct the final
F decree proceedings and then give it to their clerks for
conducting the execution proceedings. Many a time, a party
exhausts his finances and energy by the time he secures the
preliminary decree and has neither the capacity nor the energy
to pursue the matter to get the final relief. As a consequence,
G we have found cases where a suit is decreed or a preliminary
decree is granted within a year or two, the final decree f'
proceeding and execution takes decades for completion. This
is an area which contributes to considerable delay and
consequential loss of credibility of the civil justice system. Courts
H and Lawyers should give as much importance to final decree
I
.
SHUB KARAN BUBNA @SHUB KARAN PRASAD BUBNA 55
v. SITA SARAN BUBNA [R.V. RAVEENDRAN, J.)
t- proceedings and executions, as they give to the main suits. A
14. In the present system, when preliminary decree for
partition is passed, there is no guarantee that the plaintiff will
see the fruits of the decree. The proverbial observation by the
Privy Council is that the difficulties of a litigant begin when he B
obtains a decree. It is necessary to remember that success in
a suit means nothing to a party unless he gets the relief.
-f Therefore to be really meaningful and efficient, the scheme of
the Code should enable a party not only to get a decree quickly,
but also to get the relief quickly. This requires a conceptual c change regarding civil litigation, so that the emphasis is not only
on disposal of suits, but also on securing relief to the litigant.
We hope that the Law Commission and Parliament will bestow
1
their attention on this issue and make appropriate
recommendations/amendments so that the suit will be a
continuous process from the stage of its initiation to the stage D
of securing actual relief. The present system involving a
proceeding for declaration of the right, a separate proceeding
for quantification or ascertainment of relief, and another separate
proceeding for enforcement of the decree to secure the relief,
is outmoded and unsuited for present requirements. If there is E
·:.. a practice of assigning separate numbers for final decree
proceedings that should be avoided. Issuing fresh notices to
the defendants at each stage should also be avoided. The
Code of Civil Procedure should provide for a c.ontinuous and
seamless process f,rom the stage of filing of suit to the stage F
of getting relief. In money suits and other suits requiring a single
decree, the process of suit should be a continuous process
consisting of the first stage relating to determination of liability
and then the second stage of execution and recovery, without
any pause or stop or need for the plaintiff to initiate a separate G
t proceedings for execution. In suits for partition and other suits
involving declaration of the right and ascertainment/
quantification of the relief, the process of the suit should be
continuous, consisting of the first stage of determination and
declaration of the right, second stage of ascertainment/division/ H
56 SUPREME COURT REPORTS [2009] 14 (ADDL) S.C.R. /
: '
,,
.)
A quantificati'on, and the third stage of execution Jo give actual i
relief.
..Conclusion
B
·15. In so far final decree proceedings are concerned, we
see no reason for even legislative intervention. As the
provisions of the -Code stand at present, initiation of final decree
proceedings does not depend upon an application for final \---
decree for initiation (unless the local amendments require the
same). As noticed above, the Code does not contemplate filing
c an application for ·final decree. Therefore, when a preliminary
decree is passed in a partition suit, the proceedings should be
continued by fixing dates for further proceedings till a final.
decree is passed. It is the duty and function of the court. r Performance of such function does not require a reminder or
D nudge from the litigant. The mindset should be to expedite the
process of dispute resolution.
16. In view of the foregoing, we are of the view that the
application filed by the plaintiff in this case for drawing up of a
E final decree, was rightly held to be not subject to. any period of
limitation. We therefore dismiss this special leave petition as
having no merit, with a request to expedite .the final decree f
proceedings. ·
R.P. Appeal dismissed.
'· "'
