When the limitation begins to run for filing an application to pass final decree on stamped papers-Executing court cannot receive the preliminary decree unless final decree is passed as envisaged under Order 20 Rule 18(2). After final decree is passed and a direction is issued to pay stamped papers for engrossing final decree thereon and the same is duly engrossed on stamped papers, it becomes executable or becomes an instrument duly stamped. Thus, condition precedent is to draw up a final decree and then to engross it on stamped paper(s) of required value. These two acts together constitute final decree, crystallizing the rights of the parties in terms of the preliminary decree. Till then, there is no executable decree as envisaged in Order 20 Rule 18(2), attracting residuary Article 182 of the old Limitation Act. Contrary views of the High Courts, are not good law.
when would the period of limitation for execution of a decree passed in a suit for partition commence. In other words, question is when such a decree becomes enforceable – from the date when the decree is made or when the decree is engrossed on the stamp paper. Which, out of these two, would be the starting point of limitation?
In a partition suit, Court has jurisdiction to amend shares suitably, even if preliminary decree has been passed
If the preliminary decree passed in the present proceedings without complying with the provisions of Order 32 Rule 7(1) is not a nullity but is only voidable at the instance of the appellants, the question is; can they seek to avoid it by preferring an appeal against the final decree? It is in dealing with this point that the bar of Section 97 of the Code is urged against the appellants. Section 97 which has been added in the Code of Civil Procedure, 1908 for the first time provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree
In AIR 1989 NOC 74 (Mad) (Krishnamurthi v. Gopal Gounder), Ratnam, J. considering a case of determination of mesne profits in the partition suit observed thus : — “In a suit for […]
Effect of death of a party after passing preliminary decree involving question of share in partition suit
Variations or changes in the shares on account of death of party/parties and other developments after the decree affecting the rights and liabilities of the parties can be determined if necessary by […]
Whether a preliminary decree is regarded as embodying the final decision of the Court passing that decree?
In Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992, reversing a decision of the Madras High Court in AIR 1956 Mad 413, Mudholkar, J. said (at p. 995) : “A decision […]
Supreme Court of India-
Venu vs Ponnusamy Reddiar (Dead) Thr. Lrs …-there is no obligation of a litigant to apply for final decree proceedings. As such there is no question of application of the limitation.
KEYWORDS:- PARTITION CASE-impracticability of partitioning- DATE:-DECEMBER 12, 2017 Appellant, having not challenged the preliminary decree, may challenge the final decree in Partition case SUPREME COURT OF INDIA S. Esabella Vs. C. Thankarajan […]
27.04.2017 In our opinion a preliminary decree for partition crystallizes the rights of parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings. […]
21.03.2017 Partition suit-Preliminary decree⇒ in a suit for partition where preliminary decree is passed, at the time of passing of the final decree it was not open to the respondent to raise […]
13-05-2005 Partition Suit – Limitation ⇒ 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 […]
The Scope of Limitation Act in Partition Suit