CIVIL, Partition Suit

The Scope of Limitation Act in Partition Suit

Indian Law Encyclopedia

Article 136 of Limitation Act

A partition suit contemplates passing of a preliminary and a final decree. There are multiple stages in the suit as observed in Shub Karan Bubna Vs. Sita Saran Bubna & Ors. (2009(9) SCC 689).

The Hon’ble Supreme Court in Shub Karan (supra) observed that in a suit for partition or separation of a share, the court 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 “preliminary decree” under Order 20 Rule  18(2) CPC. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject-matter of the final decree under Rule 18(2).

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 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 the Limitation Act, 1963 would apply.

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 of the preliminary decree.

On the other hand, in a partition suit the preliminary decree only decide 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 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.

A decree in a partition suit enures to the benefit of all the co-owners and, therefore,
it is sometimes said that there is really no judgment-debtor in a partition decree.
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.

Under the provisions of CPC, even as they 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). 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.

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 quantification, and the third stage of execution to give actual relief. Shub Karan Bubna Vs. Sita Saran Bubna & Ors. (2009(9) SCC 689) It is not in dispute that the claim based on pre-emption was allowed but the value was not specified.

The Court is required to consider if there has been an accidental omission in the preliminary decree or the final decree. A mistake of Court should not prejudice any party. It is one thing to say that a decree could not be passed due to failure on the part of the plaintiff to produce relevant documents in order to assertain the value of the property and to pass a decree for pre-emption in favour of the plaintiffs and it is completely different thing to contend that records were available and the Court by mistake did not mention the value that was required to be deposited in order to obtain a relief under the decree. The Preliminary decree records that the plaintiffs are entitled to the decree for pre-emption under Section 4 of the Partition Act. The preliminary decree did not mention the preemption value. It needs to be ascertained when the preliminary decree was passed, the Court was in possession of such knowledge with regard to such value. It is also required to be ascertained if at the stage of drawing up a final decree, materials were produce before the Commissioner so as to ascertain the value and pass appropriate orders which should have formed part of the final decree.

In Biswapati Dey Vs .Kensington Stores & Ors. reported in AIR 1972 CAL 172, the learned Single Judge of this Hon’ble Court held that Article 136 of the Limitation Act of 1963 has set a new deadline beyond which no application for execution of the decree can be made. The period of 12 years is long enough to execute a decree when it is enforceable and the intention of the legislature is quite apparent from the language used therein that the time to make the  execution application is 12 years from the time when the decree or order becomes enforceable.

In Hameed Joharan (Dead) & Ors. Vs. Abdul Salam (Dead) by Lrs. & Ors. reported in 2001(7) SCC 573 it was held that suspension of the period of limitation by reason of one’s own failure cannot but be said to be a fallacious argument, though, however, suspension can be had when the decree is a conditional one in the sense that some extraneous events have to happen on the fulfilment of which alone it could be enforced. It was held on the facts that furnishing of stamp paper was entirely in the domain and power of the decreeholder and there was nothing to prevent him from acting in terms therewith and
thus it cannot but be said that the decree was capable of being enforced on and from 20th November, 1970 and the twelve-year period ought to be counted therefrom.

In the said reported decision it would appear that the final decree upon
acceptance of the Report of the Commissioner was passed on 20th November,
1970. The notice to furnish stamp paper was issued on 28th February 1972 and
the time granted was up to 17th March, 1972. It was held that such direction by
itself would not take it out of the purview of Article 136 as regards the
enforceability of the decree. Furnishing of stamp paper was an act entirely
within the domain and control of the appellant and any delay in the matter of
furnishing of the same cannot possibly be said to be putting a stop to the period
of limitation being run since no one can take advantage of his own wrong. The
stamp paper in the subject-matter was, in fact, filed on 26th March, 1984. That
does not mean and imply, as Their Lordships have held, that the period of
limitation as prescribed under Article 136 stands extended for a period of twelve
years from 26th March, 1984. Their Lordships have approved in Biswapati Dey
(supra) in paragraph 10 of the said report. The relevant observations of the
Hon’ble Supreme Court in Hameed Joharan (supra) are reproduced hereinbelow:-

“9. As noticed earlier in this judgment, Article 136 of the Limitation Act,
1963 being the governing statutory provision, prescribes a period of
twelve years when the decree of order becomes enforceable. The word
“enforce” in common acceptation means and implies “compel
observations of” (vide Concise Oxford Dictionary) and in Black’s Law
Dictionary “enforce” has been attributed a meaning “to give force or
effect to; to compel obedience to” and “enforcement” has been defined
as “the act or process of compelling compliance with a law, mandate or
command”. In ordinary parlance, “enforce” means and implies
“compel observance of”. Corpus Juris Secundum attributes the following for the word “enforce”:

“Enforce. – In general, to cause to be executed or performed, to cause to take effect, or to compel obedience to, as to enforce laws or rules; to control; to execute with vigor; to put in  execution; to put in force; also to exact, or to obtain authoritatively. The word is used in a multiplicity of ways and is given many shades of meaning and applicability, but it does not necessarily imply actual force or coercion. As applied to
process, the term implies execution and embraces all the legal
means of collecting a judgment, including proceedings supplemental to execution.
The past tense or past participle ‘enforced’ has been siad to
have the same primary meaning as ‘compelled’.”

10. The language used by the legislature in Article 136 if read in its proper
perspective, to wit: “when the decree or order becomes enforceable”
must have been to clear up any confusion that might have arisen by
reason of the user of the expression “the date of the decree or order”
which was used in the earlier Act. The intention of the legislature
stands clearly exposed by the language used therein viz. to permit a
twelve-year period certain from the date of the decree or order. It is in
this context that a decision of the Calcutta High Court in the case of
Biswapati Dey v. Kennsington stores where the learned Single Judge
in no uncertain terms expressed his opinion that there cannot be any
ambiguity in the language used in the third column and the words
used therein, to wit; “when the decree or order becomes enforceable”
should be read in their literal sense. We do feel it expedient to lend
out concurrence to such an observation of the learned Single Judge of
the Calcutta High Court. The requirement of the Limitation Act in the
matter of enforcement of a decree is the date on which the decree
becomes enforceable or capable of being enforced – what is required is
to assess the legislative intent and if the intent appears to be
otherwise clear and unambiguous, question of attributing a different
meaning other than the literal meaning of the words used would not
arise. It is in this context, we also do feel it inclined to record our
concurrence to the observations of the Bull Bench of the Bombay High
Court in Subhash Ganpatrao Buty v. Maroti. The Full Bench in the
decision observed:

“It is the duty of the Court to interpret the language actually
employed and to determine the intention of the legislature from
such language and since there is no ambiguity about the
language actually employed, neither the recommendation of the
Law Commission nor the aims and object as set out in the
Statement of Objects and Reasons can be brought in aid or can
be allowed to influence the natural and grammatical meaning of
the Explanation as enacted by Parliament.”

13. Article 136 of the Act of 1963 prescribes as noticed above, a twelve year
period certain and what is relevant for Article 136 is, as to when
the decree became enforceable and not when the decree became
executable. The decision of the Calcutta High Court in Biswapati case
has dealt with the issue very succinctly and laid down that the word
“enforceable” should be read in its literal sense. In the contextual
facts, the final decree upon acceptance of the Report of the
Commissioner was passed on 20-11-1970, while it is true that notice
to furnish stamp paper was issued on 28-2-1972 and the time granted
was up to 17-3-1972 but that by itself will not take it out of the
purview of Article 136 as regards the enforceability of the decree.
Furnishing of stamp paper was an act entirely within the domain and
control of the appellant and any delay in the matter of furnishing of
the same cannot possibly be said to be putting a stop to the period of
limitation being run – no one can take advantage of his own wrong; as
a matter of fact, in the contextual facts, no stamp paper was filed until
26-3-1984 – does that mean and imply that the period of limitation as
prescribed under Article 136 stands extended for a period of twelve
years from 26-3-1984? The answer if it be stated to be in the
affirmative, would lead to an utter absurdity and a mockery of the
provisions of the statute. Suspension of the period of limitation by
reason of one’s own failure cannot but be said to be a fallacious
argument, though, however, suspension can be had when the decree
is a conditional one in the sense that some extraneous events have to
happen on the fulfilment of which alone it could be enforced –
furnishing of stamped paper was entirely in the domain and power of
the decree-holder and there was nothing to prevent him from acting in
terms therewith and thus it cannot but be said that the decree was
capable of being enforced on and from 20-11-1970 and the twelveyear
period ought to be counted therefrom. It is more or less in an
identical situation, this Court even five decades ago in the case of Yeshwant Deorao Deshmukh v. Walchand Ramchand Kothari has stated:

“The decree was not a conditional one in the sense that some extraneous event was to happen on the fulfilment of which alone it could be executed. The payment of court fees 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.”

14. Needless to record that the engrossment of stamped paper would
undoubtedly render the decree executable but that does not mean and
imply, however, that the enforceability of the decree would remain
suspended until furnishing of the stamped paper – this is opposed to
the fundamental principle on which the statutes of limitation are
founded. It cannot but be the general policy of our law to use the legal
diligence and this has been the consistent legal theory from the
ancient times: even the doctrine of prescription in Roman law
prescribes such a concept of legal diligence and since its incorporation
therein, the doctrine has always been favoured rather than claiming
disfavour. Law courts never tolerate an indolent litigant since delay
defeats equity – the Latin maxim vigilantibus et non dormientibus jura
subveniunt (the law assists those who are vigilant and not those who
are indolent). As a matter of fact, lapse of time is a species for
forfeiture of right. Wood, V.C. in Manby v. Bewicke (K& J at p.352) stated: (ER p. 1144)

“The legislature has in this, as in every civilized country that
has ever existed, thought fit to prescribe certain limitations of
time after which persons may suppose themselves to be in
peaceful possession of their property, and capable of
transmitting the estates of which they are in possession, without
any apprehension of the title being impugned by litigation in
respect of transactions which occurred at a distant period, when
evidence in support of their own title may be most difficult to obtain.”

15. Recently this Court in W.B. Essential Commodities Supply Corpn. V. Swadesh Agro Farming & Storage (P) Ltd. (1999) 8 SCC 315, had the occasion to consider the question of limitation under Article 136 of the Limitation Act of 1963 and upon consideration of the decision in the case of Yeshwant Deorao held that under the scheme of the Limitation
Act, execution applications like plaints have to be presented in court within the time prescribed by the Limitation Act. A decree-holder, this Court went on to record, does not have the benefit of exclusion of the time taken for obtaining even the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct
time taken by the court in drawing up and signing the decree. In fine,
this Court observed that if the time is reckoned not from the date of the
decree but from the date when it is prepared, it would amount to doing
violence to the provisions of the Limitation Act as well as of Order 20
and Order 21 Rule 11 CPC, which is clearly impermissible.
31. Incidentally, the Calcutta High Court in one of its very old decision in
the case of Kishori Mohan Pal v. Provash Chandra Mondal (AIR 1924
Cal 351) while interpreting Article 182 under the Limitation Act of
1908 has been rather categorical in recording that the date of the
decree under the article is the day on which the judgment is
pronounced and limitation begins to run from that day although no
formal decree can be drawn up in a partition suit until paper being a
proper stamp under Article 45 of the Stamp Act is supplied to the
Court. Richardson, J. with his usual felicity of expression stated as below: (AIR p.352)

“In this Court the learned Vakil for the respondents has said all that could be said for his clients. He has in particular called our attention to the fact that, although the decree is dated 25-3- 1914, it is expresed to be ‘passed in terms of the Commissioner’s report, dated 27-6-1914 which and the map filed along with it do form parts of the decree’. 25-3-1914 is,
nevertheless, the correct date of the decree because that is they day on which the judgment was pronounced (Order 20 Rule 7 Civil Procedure Code). The report of the Commissioner appointed to make the partition had already been received, the report was adopted by the judgment subject to certain variations and, in connection with those variations, certain directions of a ministerial character were given to the Commissioner which the
Commissioner had merely to obey. The order sheet shows that
the Commissioner submitted a report on 27-6-1914. That report
has not been placed before us. But I have no doubt that it did
no more than state that the Commissioner had done what he
was directed to do by the judgment of 25-3-1914. That
judgment was the final judgment in the suit and it was so
regarded by the Subordinate Judge who delivered it. The
decree is in accordance therewith. The directions in the
judgment were sufficient to indicate how the decree should be
framed, and there was no need of any further judgment.
The delay in signing the decree was due not to any fault
of the Court or to any cause beyond the control of the parties but
solely to the delay of the parties in supplying the requisite
stamped paper. Any party desiring to have the decree executed
might have furnished the stamped paper at any time leaving the
expense of providing it to be adjusted by the Court in connection
with the costs of the execution.
The circumstances disclose no ground for saying that limitation did not run from the date of the decree as provided by Article 182 of the Limitation Act, and if authority be needed, reference may be made to Golam Gaffar Mondal v. Goljan Bibi (ILR(1898)25 Cal 109) and Bhajan Behary Shaha v. Girish Chandra Shaha (1913 (17) CWN 959).
I may add that much time and labour would be saved if the Court would resist such attempts as the present to go behind the plain words of a positive enactment.”

34. Be it noted that the legislature cannot be subservient to any personal
whim or caprice. In any event, furnishing of engrossed stamp paper
for the drawing up of the decree cannot but be ascribed to be a
ministerial act, which cannot possibly put under suspension a
legislative mandate. Since no conditions are attached to the decree
and the same has been passed declaring the shares of the parties
finally, the Court is not required to deal with the matter any further –
what has to be done – has been done. The test thus should be – has
the Court left out something for being adjudicated at a later point of
time or is the decree contingent upon the happening of an event – i.e.
to say the Court by its own order postpones the enforceability of the
order – in the event of there being no postponement by a specific order
of the Court, there being a suspension of the decree being
unenforceable would not arise. As a matter of fact, the very definition
of decree in Section 2(2) of the Civil Procedure Code lends credence to
the observations as above since the term is meant to be “conclusive
determination of the rights of the parties”.

40. In the wake of the aforesaid, we are unable to record an affirmative support to Mr Mani’s submission that Section 35 read with Section 2(15) of the Indian Stamp Act, 1899 would overrun the Limitation Act of 1963 and thus give a complete go-by to the legislative intent in the matter of incorporation of Article 136.”