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TMI Blog2012 (2) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 61/2 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 state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure 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, Rule 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 Hussain AIR 1933 Oudh 562, 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 sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecree 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y LRs., (2005) 10 SCC 746 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be made contingent upon the engrossment of the decree on the stamp paper. 31. In Ram Bachan Rai and Ors. v. Ram Udar Rai and Ors. (2006) 9 SCC 446, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff decreeholder. 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 impedim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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