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TMI Blog1995 (3) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... final decree was made qua them. On the other hand, Darkhast No.41/63 was filed by them for execution of the preliminary decree which was subsequently dismissed as withdrawn. Darkhast No. 70 was filed in 1965 which was dismissed on March 13, 1968 as the application was barred by limitation. In First Appeal No.605/68, the High Court held that in view of the fact that no final decree was passed on non-judicial stamps, there was no decree in existence for its execution . Therefore, on August 12, 1975, the appeal was dismissed. On August 14, 1975, the appellants filed Misc.Application No.538/ 75 before the trial court to accept the nonjudicial stamps and to pass a final decree. The said application was contested by the respondent pleading bar of limitation. The trial court overruled the objection and allowed the application on 3.2.76 holding that the application was not barred by limitation. In First Appeal No.229/76, Learned Single Judge of the High Court held that the limitation began to run from the date when the direction was given to pass final decree. Since the application was filed after the expiry of period of limitation counted from that date, the Court held on March 7, 1977 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required . (Emphasis ours) Thus, it could be seen that where the decree relates to any immovable property and the partition or separation cannot be conveniently made without further inquiry, then the court is required to pass a preliminary decree declaring the rights of several parties interested in the property. The court is also empowered to give such further directions as may be required in this behalf A preliminary decree in a partition action, is a step in the suit which continues until the final decree is passed. In a suit for partition by a coparcenar or cosharer, the court should not give a decree only for the plaintiffs share, it should consider shares of all the heirs after making them parties and then to pass a preliminary decree. The words declaring the rights of the several parties interested in the property in sub-rule(2) would indicate that shares of the parties, other than the plaintiff(s), have to be taken into account while passing preliminary decree. Therefore, preliminary decree for partition is only a declaration of the rights of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for engrossing the final decree and when the Court engrosses the final decree on the stamp and signs it. 7. Question is whether the aforesaid view is correct? Since the decree is one which is prior to the Limitation Act, 1963, we are to look to the provisions contained in the Limitation Act, 1908, (for short, 'the old Act'), for deciding the controversy. Article 182 of the First Schedule to the old Act envisages that for the execution of a decree or order of any civil court not provided for by Article 183 or by Section 48 of CPC, the period of limitation of three years begins to run from the date the final order was passed on an application made in accordance with law to the proper court for execution, or to take some step in aid of execution of the decree or order. Explanation 1 provides that where the decree or order has been passed severally in favour of more persons than one, distinguishing portions of the subject-matter as payable or deliverable to each, the application mentioned in note 5 of the article shall take effect in favour only of such of the said persons or their representatives as it may be made by. But where the decree or order has been passed jointl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made within limitation, the decree became unexecutable, being barred by limitation. That was accepted by the High Court. On appeal, the Judicial Committee held that in order to make the provisions of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being enforced . The decree being limited in its scope, it was held that limitation did not begin to run from the date of decree as drawn. The contention of Smt.Jaishree Wad, learned council for the respondent, is that the Privy Council upheld the principle of making an application within three years from the date when the right to apply accrues, as provided in Article 181 of the old Limitation Act, the ratio of the aforesaid case applies to the facts in this case since the application had not been made within three years or within 12 years and so, it was hopelessly barred by limitation. She placed reliance on the judgment of this Court in Yeshwant v. Walchand, AIR 1951 SC 17 also, and on judgments in Maksudan Prasad v. Smt. Lakshmi Devi, AIR 1983 Patna 105, Pandivi Satyanandam v P. Nammayya AIR 1938 Madras 307, and Basamma v. Shivamma, AIR 1963 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a direction is issued to pay stamped papers for engrossing final decree thereon and the same is duly engrossed on stamped paper(s), 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. A Division Bench of the Andhra Pradesh High Court in Smt. Kotipalli Mahalakshmamma v. K. Ganeswara Rao, AIR 1960 AP 54, correctly decided the question of law which held that the limitation begins to run only after a final decree is engrossed on stamped papers. 13. Accordingly, the appeals arc allowed. The judgments and orders of the High Court arc set aside and that of the trial court stands confirmed. The trial court is directed first to pass the final decree and then to engross the same on the stamped papers already supplied by the appellants; if further stamped ..... X X X X Extracts X X X X X X X X Extracts X X X X
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