Suresh Vyas Vs. Ramchandra Vyas Through L.Rs. and ors. - Court Judgment

Excerpt:
limitation - time barred - article 136 of limitation act,1963(act) - respondent no.1 filed suit for partition against appellant and respondent no.2 to 4 - trial court passed preliminary decree for partition - respondent no.1 filed application for execution - respondent no.2 to 4 along with appellant raised objection on ground of barred by limitation - trial court rejected said objection and appointed partition commissioner as per preliminary decree - hence, present revision petition - held, as per article 136 of act limitation period for execution of decree is 12years from date on which decree becomes enforceable - in present case, no final decree was drawn up - therefore decree for partition had not become enforceable - hence execution application for actual partition of house by appointing partition commissioner was not barred by time - revision petition accordingly dismissed - constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. orderp.k. jaiswal, j.1. heard.the applicant in this revision application challenging the order dated 10-10-2005 passed by seventh civil judge, class i, gwalior, in case no. 188-a/77 2003 e.d.2. brief facts of the case are that the non-applicant no. 1 filed a suit for partition against the applicant and non-applicant nos. 2 to 4. the trial court vide judgment and decree dated 2-1 -1981 passed a preliminary decree for partition in civil suit no. 188-a/77. on 3-12-2003, non-applicant no. 1 filed an application before the trial court for execution of preliminary decree. it is averred in the application that earlier an application was filed for preparation of final decree. the record of the trial court was misplaced and the said application was dismissed in 1997 on account of non-appearance of the non-applicant no. 1 and an application to restore the same was also filed but the court record has also been destroyed in the incident of fire. the non-applicant filed its reply and opposed the application and prays for dismissal of the application on the ground that the same is barred by time under article 136 of the limitation act, 1963. the applicant also raised an objection that execution of preliminary decree is not maintainable. it is further averred that in the year 1997, property in question had been divided by mates and bound between the parties in family settlement arrived in the year 1997 and the same had been acted upon and late shri bhaskar vyas and non-applicant no. 4 purshottam vyas relinquished their shares in favour of the applicant. the trial court by impugned order rejected the objection of the applicant by holding that application is not barred by time and appointed shri naqvi as a partition commissioner as per preliminary decree dated 2-1-1981.3. the question involved in the revision application is when a decree for partition becomes enforceable within the meaning of article 136 of the limitation act, 1963 so that the period of limitation prescribed therefor would began to run thereunder. article 136 of the limitation act provides that 'for the execution of any decree (other than a decree granting mandatory injunction)', the period of limitation is 12 years and that the time from which that period would began to run is 'when the decree becomes enforceable'.4. the court passes a preliminary decree declaring the rights of the several parties, entrusted in the property, giving further directions under order 20 rule 18 of cpc as maybe required. here in the present case, the preliminary decree was passed on 2-1-1981 with a direction to the decree-holder that properties be divided by mates and bounds, by a partition commissioner and, thereafter, 1/3rd share of the decree holder be given to him. thus, final decree is to be passed after the properties are divided by mates and bound by a partition commissioner and the court on considering such report accept it and passes a decree thereon.5. in the case of s.k. kamiz v. namudin pewa 2001 (3) ccc 585 (calcutta) and in the case of murugan v. chidambaram pillai and ors. : air1991mad307 , it has been held that in an application for making the preliminary decree final is in a pending suit the limitation act does not apply and the petition may be filed at any time.6. in the case of a manjundappa v. sonnappa and ors. air 1965 mysore 73, the mysore high court has held that a petition for transmission of record of preliminary partition decree to deputy commissioner is not petition for execution of a decree because there is no executable decree. it is a petition in a pending suit praying the court to take the necessary steps for drawing up of a final decree after effecting a division in terms of the preliminary decree. the duty of drawing a final decree is that of the court and neither the code of civil procedure nor the limitation act specifically provides for any application being made for drawing up a final decree. such a petition is not, therefore, barred by limitation)7. a decree for partition is also thereafter 'instrument of partition' as defined in section 2(15) of the stamp act, 1899 and is chargeable with the stamp duty thereunder. under section 35 of the stamp act, such a decree for partition cannot be admitted in evidence and cannot in any way be acted upon by or in any court unless the same is duly stamped and, therefore, does not become enforceable until engrossed on stamp papers.8. the supreme court in the case of hameed joharan (d) and ors. v. abdul salam (d) by l.rs. and ors. : air2001sc3404 , considered the provisions of section 2(15) and section 35 of the indian stamp act, 1899 and has observed the following:.undoubtedly, section 2(15) includes a decree of partition and section 35 of the act of 1899 lays down a bar in the matter of unstamped or insufficient stamp being admitted in evidence or being acted upon but does that mean that the prescribed period shall remain suspended until the stamp paper is furnished and the partition decree is drawn thereon and subsequently signed by the judge? the result would however be an utter absurdity; as a matter of fact if somebody does not wish to furnish the stamp paper within the time specified therein and as required by the civil court to draw up the partition decree or if someone does not at all furnish the stamp paper, does that mean and imply, no period of limitation can said to be attracted for execution or a limitless period of limitation is available. the intent of the legislature in engrafting the limitation act shall have to be given its proper weightage. absurdity cannot be the outcome of interpretation by a court order and wherever there is even a possibility of such absurdity, it would be plain exercise of judicial power to repel the same rather than encouraging it. the whole purport of the indian stamp act is to make available certain dues and to collect revenue but it does not mean and imply overriding the effect over another statute operating on a completely different sphere.9. the apex court has held that the period of 12 years begins to run from the date on which decree becomes enforceable and not when decree becomes executable. the requirement of the limitation act in the matter of enforcement of a decree is the date on which decree becomes enforceable or capable or being enforced. in the case of hameed joharan (d) and ors. (supra), the final decree was passed on 20-11-1970, notice to furnish stamp paper issued on 28-2-1972 and no stamp paper, however, filed until 26-3-1984. the apex court has held that when no stamp paper was filed until 26-3-1984, it does not mean and imply that the period of limitation as prescribed under article 136 stands extended for a period of 12years from 26-3-1984 else it, would lead to an utter absurdity and a mockery of the provisions of the statute. thus it cannot but be said that the decree was capable of being enforced on and from 20-11-1970 and the 12 years period ought to be counted therefrom. needless to record that 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 of which the statutes of limitation as founded.10. from the above observation made by the apex court, it is clear that in execution of decree period of limitation ol'12years begins to run from the date on which decree becomes enforceable and not when decree becomes executable.11. here, in the present case, no final decree is drawn up and, therefore, the decree for partition does not become enforceable.12. for the above mentioned reasons, i accordingly held that the decree for partition does not become enforceable until the final decree is passed and, therefore, under article 136 of the limitation act, 1963, the period of 12 years begins to run from the date on which final decree becomes enforceable and not when decree becomes executable, i.e., on the date on which final decree is pronounced by the court and limitation period ought to be counted therefrom. that being so, as indicated at the very outset, i would accordingly hold that the execution application filed by the applicant for actual partition of the house by appointing partition commissioner vide application dated 3-12-2003 was not barred by time and the learned trial court has not committed any error in rejecting the same.13. the revision application filed by the applicant has no merit and is accordingly dismissed. the executing court is directed to proceed with the execution in accordance with law. the original record of the case be sent to the trial court along with a copy of this order. there shall be no order as to costs.

Judgment:
ORDER

P.K. Jaiswal, J.

1. Heard.

The applicant in this revision application challenging the order dated 10-10-2005 passed by Seventh Civil Judge, Class I, Gwalior, in Case No. 188-A/77 2003 E.D.

2. Brief facts of the case are that the non-applicant No. 1 filed a suit for partition against the applicant and non-applicant Nos. 2 to 4. The Trial Court vide judgment and decree dated 2-1 -1981 passed a preliminary decree for partition in Civil Suit No. 188-A/77. On 3-12-2003, non-applicant No. 1 filed an application before the Trial Court for execution of preliminary decree. It is averred in the application that earlier an application was filed for preparation of final decree. The record of the Trial Court was misplaced and the said application was dismissed in 1997 on account of non-appearance of the non-applicant No. 1 and an application to restore the same was also filed but the Court record has also been destroyed in the incident of fire. The non-applicant filed its reply and opposed the application and prays for dismissal of the application on the ground that the same is barred by time under Article 136 of the Limitation Act, 1963. The applicant also raised an objection that execution of preliminary decree is not maintainable. It is further averred that in the year 1997, property in question had been divided by mates and bound between the parties in family settlement arrived in the year 1997 and the same had been acted upon and Late Shri Bhaskar Vyas and non-applicant No. 4 Purshottam Vyas relinquished their shares in favour of the applicant. The Trial Court by impugned order rejected the objection of the applicant by holding that application is not barred by time and appointed Shri Naqvi as a Partition Commissioner as per preliminary decree dated 2-1-1981.

3. The question involved in the revision application is when a decree for partition becomes enforceable within the meaning of Article 136 of the Limitation Act, 1963 so that the period of limitation prescribed therefor would began to run thereunder. Article 136 of the Limitation Act provides that 'for the execution of any decree (other than a decree granting mandatory injunction)', the period of limitation is 12 years and that the time from which that period would began to run is 'when the decree becomes enforceable'.

4. The Court passes a preliminary decree declaring the rights of the several parties, entrusted in the property, giving further directions under Order 20 Rule 18 of CPC as maybe required. Here in the present case, the preliminary decree was passed on 2-1-1981 with a direction to the decree-holder that properties be divided by mates and bounds, by a Partition Commissioner and, thereafter, 1/3rd share of the decree holder be given to him. Thus, final decree is to be passed after the properties are divided by mates and bound by a Partition Commissioner and the Court on considering such report accept it and passes a decree thereon.

5. In the case of S.K. Kamiz v. Namudin Pewa 2001 (3) CCC 585 (Calcutta) and in the case of Murugan v. Chidambaram Pillai and Ors. : AIR1991Mad307 , it has been held that in an application for making the preliminary decree final is in a pending suit the Limitation Act does not apply and the petition may be filed at any time.

6. In the case of A Manjundappa v. Sonnappa and Ors. AIR 1965 Mysore 73, the Mysore High Court has held that a petition for transmission of record of preliminary partition decree to Deputy Commissioner is not petition for execution of a decree because there is no executable decree. It is a petition in a pending suit praying the Court to take the necessary steps for drawing up of a final decree after effecting a division in terms of the preliminary decree. The duty of drawing a final decree is that of the Court and neither the Code of Civil Procedure nor the Limitation Act specifically provides for any application being made for drawing up a final decree. Such a petition is not, therefore, barred by limitation)

7. A decree for partition is also thereafter 'instrument of partition' as defined in Section 2(15) of the Stamp Act, 1899 and is chargeable with the stamp duty thereunder. Under Section 35 of the Stamp Act, such a decree for partition cannot be admitted in evidence and cannot in any way be acted upon by or in any Court unless the same is duly stamped and, therefore, does not become enforceable until engrossed on stamp papers.

8. The Supreme Court in the case of Hameed Joharan (D) and Ors. v. Abdul Salam (D) by L.Rs. and Ors. : AIR2001SC3404 , considered the provisions of Section 2(15) and Section 35 of the Indian Stamp Act, 1899 and has observed the following:.Undoubtedly, Section 2(15) includes a decree of partition and Section 35 of the Act of 1899 lays down a bar in the matter of unstamped or insufficient stamp being admitted in evidence or being acted upon but does that mean that the prescribed period shall remain suspended until the stamp paper is furnished and the partition decree is drawn thereon and subsequently signed by the Judge? The result would however be an utter absurdity; as a matter of fact if somebody does not wish to furnish the stamp paper within the time specified therein and as required by the Civil Court to draw up the partition decree or if someone does not at all furnish the stamp paper, does that mean and imply, no period of limitation can said to be attracted for execution or a limitless period of limitation is available. The intent of the legislature in engrafting the Limitation Act shall have to be given its proper weightage. Absurdity cannot be the outcome of interpretation by a Court order and wherever there is even a possibility of such absurdity, it would be plain exercise of judicial power to repel the same rather than encouraging it. The whole purport of the Indian Stamp Act is to make available certain dues and to collect revenue but it does not mean and imply overriding the effect over another statute operating on a completely different sphere.

9. The Apex Court has held that the period of 12 years begins to run from the date on which decree becomes enforceable and not when decree becomes executable. The requirement of the Limitation Act in the matter of enforcement of a decree is the date on which decree becomes enforceable or capable or being enforced. In the case of Hameed Joharan (D) and Ors. (supra), the final decree was passed on 20-11-1970, notice to furnish stamp paper issued on 28-2-1972 and no stamp paper, however, filed until 26-3-1984. The Apex Court has held that when no stamp paper was filed until 26-3-1984, it does not mean and imply that the period of limitation as prescribed under Article 136 stands extended for a period of 12years from 26-3-1984 else it, would lead to an utter absurdity and a mockery of the provisions of the statute. Thus it cannot but be said that the decree was capable of being enforced on and from 20-11-1970 and the 12 years period ought to be counted therefrom. Needless to record that 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 of which the statutes of limitation as founded.

10. From the above observation made by the Apex Court, it is clear that in execution of decree period of limitation ol'12years begins to run from the date on which decree becomes enforceable and not when decree becomes executable.

11. Here, in the present case, no final decree is drawn up and, therefore, the decree for partition does not become enforceable.

12. For the above mentioned reasons, I accordingly held that the decree for partition does not become enforceable until the final decree is passed and, therefore, under Article 136 of the Limitation Act, 1963, the period of 12 years begins to run from the date on which final decree becomes enforceable and not when decree becomes executable, i.e., on the date on which final decree is pronounced by the Court and limitation period ought to be counted therefrom. That being so, as indicated at the very outset, I would accordingly hold that the execution application filed by the applicant for actual partition of the house by appointing Partition Commissioner vide application dated 3-12-2003 was not barred by time and the learned Trial Court has not committed any error in rejecting the same.

13. The revision application filed by the applicant has no merit and is accordingly dismissed. The Executing Court is directed to proceed with the execution in accordance with law. The original record of the case be sent to the Trial Court along with a copy of this order. There shall be no order as to costs.