The question whether a decree passed under O. 20, R. 18( 1), CPC directing partition by the Collector can be said to be a preliminary decree and whether such an order can be termed as an application in an execution petition and any order under the said provision is barred by time.-- came up for consideration before the Division Bench of this Court for the first time in Narasu v. Narayan Krishnaji, AIR 1959 Mys, 233 . Though the main contention in that case was the maintainability of the appeal as it is a ministerial order, the Division Bench had an occasion to thrash out all the controversies including the one which is now canvassed in this revision. That was also a case where after the High Court decree, the decree holders filed some application to the trial Court to take steps to partition the properties in question. The objection raised by the contesting respondents was whether the application in execution was tenable etc. Incidentally it was contended in that case that the application filed amounts to execution petition which is filed after limitation. It is in this context it is held by the Division Bench that the application cannot be considered in law as an execution petition - a decree passed under Rule 18(1) of Order 20 directing partition by the Collector cannot be said to be a preliminary decree. Sofar as the Civil Courts are concerned it is final for all purposes, though the partition of the property may remain to be effected by the Collector. Sub-rule (1) of R. 18 does not contemplate any application to be filed by the parties for sending the papers to the Collector. It says that the Court "shall direct such partition or separation to be made by the Collector or any Gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of S. 54." It is further held that "any application filed before the Court which passed the decree to send the papers to the Collector could only be considered as a reminder to the Court to follow up its direction given under sub-rule (1) of R. 18. No period of limitation is provided for such a reminder as the same is not one contemplated by law. In sending the papers to the Collector, the Court is not performing any judicial function; nor is it required to pass any judicial order. Its function could at best be described as ministerial. It will be inappropriate to call such an application as an execution application. The Court which passed the decree must be deemed to have become functus officio after passing the decree."
Civil Revision No. 4010/1996
Civil - Execution of Decree - Order 20, Rule 18 and Section 54 of Code of Civil Procedure, 1908 (CPC) - Whether decree holder i.e. Respondents could file application under Order 20 Rule 18 of CPC for enforcement of decree after 24 years from date of decree passed for effecting partition of suit properties by metes and bounds in terms of decree -- Respondents herein had filed a suit in Munsiff Court, for partition and separate possession of their share which was decreed after contest - But Plaintiffs had not taken any further steps thereafter, 24 years thereafter they had filed this application under Order 20, Rule 18, CPC requesting trial Court to transmit records to Deputy Commissioner for effecting partition of suit properties by metes and bounds in terms of decree - Defendants resisted this application on the short ground that it is barred by limitation - Objection of Respondent was overruled - Hence present revision - Held, Section 54 and Order 20, Rule 18 of CPC contemplate that partition of estate or for separate possession of a share made in decree should be made by Collector or Gazetted subordinate to him - Provisions of Order 20, Rule 18 of CPC do not contemplate any application or petition by decree holder for transmission of papers to Collector - There was no direction to Collector to effect division by metes and bounds in lands under Section 54 of CPC - But Court by said decree had declared rights of parties - It was well settled that failure to embody such direction could not affect validity of decree nor could such failure on part of Court made decree inoperative - It is an established proposition of law that in suit for partition in which a preliminary decree had been drawn, continued to be pending on file of trial Court until final decree was drawn up in accordance with law - Trial Court could therefore pass either suo motu or in an application by any of parties, such order as was necessary for giving effect to preliminary decree to grant effectively to parties all relief they were entitled to there under - Therefore, Court did not find any merit in revision - Revision therefore was dismissed
IN THE HIGH COURT OF KARNATAKA
Decided On: 05.02.1997
Appellants: Sanna Palaiah alias Palaiah
Vs.
Respondent: Soncha Boraiah and another
Vs.
Respondent: Soncha Boraiah and another
1. In this revision, the petitioner has attempted to reopen the settled law. This is a case where an application filed under O. 20, R. 18, CPC by the decree holder was objected to by the defendants, but was over ruled by the trial Court.
2. Facts leading to this revision are as follows :
Respondents herein had filed a suit in O.S. 302 of 1970 on the file of the Munsiff, Chitradurga, for partition and separate possession of their share which was decreed after contest. But the plaintiffs had not taken any further steps thereafter. 24 years thereafter they have filed this application under Order 20, Rule 18, CPC requesting the trial Court to transmit the records to the Deputy Commissioner for effecting partition of suit properties by metes and bounds in terms of the decree. The defendants have resisted this application on the short ground that it is barred by limitation.
3. The learned Munsiff on consideration of the contentions raised at the bar, overruled the objections raised by the defendants-respondents. Hence, this revision.
4. Sri Kaleemulla Shariff-learned counsel for the petitioner has contended that in view of the latest decision of this Court in Sri M. Sunnasab since dead by L.Rs. v. Rameezabi, MANU/KA/0498/1996 : ILR 1996 Kar 3347: (1996 AIHC 5654), the petition filed under O. 20, R. 18, CPC is an execution petition which is filed after 12 years is barred by time and therefore the order of the trial Court over-ruling the objections raised by the defendants is not sustainable in law.
5. Per contra it is contended by the learned counsel for the respondents that an application under O. 20, Rule 18, CPC is not an application for execution of the decree. This quetion is no longer in controversy in view of the settled law and thereafter justified the impugned order.
6. The short question that arises for consideration in this revision is whether an application under O. 20, R. 18 CPC is an application for execution of a decree.
7. The learned counsel have also relied upon the provisions of CPC enumerated in Section 54 and O. 20, R. 18, CPC. Section 54 CPC reads as follows :
"Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any Gazetted subordinate of the Collector deputed by him in this behalf, in accordance with law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estate."
O. 20, R. 18, CPC reads as follows :
"Decree in suit for partition of property or separate possession of a share therein: Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then-(1) If and so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any Gazetted subordinate of the Collector deputed by him in this behalf, in accordance with with such declaration and with the provisions of Section 54.(2) If and insofar as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required."
8. Both these provisions contemplate that the partition of the estate or for separate possession of a share therein shall be made by the Collector or Gazetted sub-ordinate to him. The provisions of O. 20, R. 18 does not contemplate any application or petition by the decree-holder fir transmission of papers to the Collector.
9. There is no dispute in this case that there is no direction to the Collector to effect division by metes and bounds in the lands under Section 54, CPC. But the Court by the said decree has declared the rights of the parties. It is well settled that failure to embody such direction cannot affect the validity of the decree nor can such failure on the part of the Court make the decree inoperative. It is an established proposition of law that in suit for partition in which a preliminary decree has been drawn, continues to be pending on the file of the trial Court until the final decree is drawn up in accordance with law. The trial Court can therefore pass either suo motu or in an application by any of the parties, such order as is necessary for giving effect to the preliminary decree to grant effectively to the parties all the reliefs they are entitled to thereunder.
10. In this regard, reference may be made to the pronouncement of the Judicial Committee of the Privy Council in Jadunath Roy v. Parameshwar Mallick, (MANU/PR/0046/1939 : ILR (1940) I Cal 255 : AIR 1940 PC 11), wherein it was held that a partition suit in which a preliminary decree has been passed is still a pending suit and the rights of parties who have been added after the preliminary decree have to be adjusted in the final decree.
11. The question whether a decree passed under O. 20, R. 18( 1), CPC directing partition by the Collector can be said to be a preliminary decree and whether such an order can be termed as an application in an execution petition and any order under the said provision is barred by time.-- came up for consideration before the Division Bench of this Court for the first time in Narasu v. Narayan Krishnaji, AIR 1959 Mys, 233 . Though the main contention in that case was the maintainability of the appeal as it is a ministerial order, the Division Bench had an occasion to thrash out all the controversies including the one which is now canvassed in this revision. That was also a case where after the High Court decree, the decree holders filed some application to the trial Court to take steps to partition the properties in question. The objection raised by the contesting respondents was whether the application in execution was tenable etc. Incidentally it was contended in that case that the application filed amounts to execution petition which is filed after limitation. It is in this context it is held by the Division Bench that the application cannot be considered in law as an execution petition - a decree passed under Rule 18(1) of Order 20 directing partition by the Collector cannot be said to be a preliminary decree. Sofar as the Civil Courts are concerned it is final for all purposes, though the partition of the property may remain to be effected by the Collector. Sub-rule (1) of R. 18 does not contemplate any application to be filed by the parties for sending the papers to the Collector. It says that the Court "shall direct such partition or separation to be made by the Collector or any Gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of S. 54." It is further held that "any application filed before the Court which passed the decree to send the papers to the Collector could only be considered as a reminder to the Court to follow up its direction given under sub-rule (1) of R. 18. No period of limitation is provided for such a reminder as the same is not one contemplated by law. In sending the papers to the Collector, the Court is not performing any judicial function; nor is it required to pass any judicial order. Its function could at best be described as ministerial. It will be inappropriate to call such an application as an execution application. The Court which passed the decree must be deemed to have become functus officio after passing the decree."
12. In support of their opinion, the Division Bench has relied upon the Full Bench decision of the Bombay High Court in Ramabai Govind v. Anant Daji,MANU/MH/0135/1944 : AIR 1945 Bom 338; AIR 1939 Bom 454 and a Full Bench decision of Madras High Court reported in Venkataraghava Rao v. Venkata Hanumantha Rao, MANU/TN/0111/1945 : AIR 1945 Mad 336.
13. It is relevant to note here that in the case decided by the Division Bench of this Court in Narasu and others case, the decree holders attempted to put into effect the partition decree which had been passed about 40 years prior to the filing of the application before the trial Court. Commenting upon this circumstance, the Division Bench has observed thus (at Page 234 (of AIR):
"Prima facie it may appear to be something strange. But the law of limitation does not spring from the common law of this country. Its effectiveness depends upon the statutory provisions. So long as there is no law prohibiting the partition of the property after a fixed period of limitation, the decree holders cannot be deprived of their rights."
Section 54 C.P.C. is a provision allied to provisions relating to execution. That section could not have been conveniently placed anywhere else. There is nothing in the language of that section to indicate that the proceedings thereunder are execution proceedings. If they are execution proceedings, there must have been corresponding provisions in O. 21 of the C.P.C.
14. The learned single Judge of this Court (Somnath Iyer, J.) in Munippa v. Subba Reddy, 1962 Mys LJ Supp 471 held the same view, though there is no reference to the decision of Division Bench in Narasu and others case.
15. This question cropped up again in A. Manjundappa v. Sonnappa, AIR 1965 Mys 73 Case. Justice Tukol (as he then was) had an occasion to consider these two questions in detail after extensive reference to the decided cases including the decision of the Division Bench of this Court in Narasu and others case.
It is held in that case that:-
"A petition for transmission of record and proceedings of preliminary partition decree to the Deputy Commissioner is not a petition for execution of a decree because there is not 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."
16. Whether the provisions of Section 54 CPC contemplates execution proceedings in cases of decree for partition incidentally came up for consideration in Ramagouda Redregowda Patil v. Lingavva, AIR 1985 Kar 82 . The Court has also referred to the scope of O. 20, R. 18(1), CPC. The contentions raised therein and the context under which those contentions were decided are entirely different. But, it is held that under Section 54, C.P.C., the execution is not at all contemplated in such cases of decrees for partition.
17. The controversy in this regard surfaced as a result of the pronouncement of law by the learned single Judge of this Court in Sri M. Sunnasab, since dead by LRs. v. Rameezabi, MANU/KA/0498/1996 : ILR 1996 Kar 3347. The only case law referred to is the decision in Ramagouda Rudregowda Patil case. In Sunnasab's case a decree for partition was passed by the trial Court in the year 1967 which assumed finality in the 2nd appeal in the year 1975. In September 1992 an application was made to the executing Court to give effect to that decree and that the Court transmitted the records to the Deputy Commissioner, with instructions to effect the partition by metes and bounds etc. The said order was questioned by the aggrieved defendants in a petition under Section 115 CPC before this Court. It was vehemently canvassed before the Court that the said application was presented after a lapse of 17 years and the application for execution ought to have been filed within a period of 12 years and, therefore, the said application was clearly barred by time. The learned counsel for the respondent-decree holder appears to have relied only on the ratio laid down in Ramagouda Ruduregowda Patil case, and none else. The learned counsel have not brought to the notice of the Court, the decisions of this Court. This is how the learned single Judge has distinguished the previous case and, made his pronouncement in Sunna Sab case in the following words (at Page 5655 (of AIHC) :
"This is a full fleged and clear cut execution petition for which the bar of limitation would come in if a period of more than 12 years was elapsed since the date when the the decree was finally pronounced. To this extent I find that the submissions canvassed by the learned counsel are virtually unanswerable. One needs to take a clear perspective of the law which provides that the execution proceedings necessarily presupposes the Court machinery being pressed into service for purpose of giving concrete shape to what has been decided by the Court prior to the decree having been passed. Once the dispute has been adjudicated undoubtedly, it is open to the parties to give effect to the decree in the case execution proceedings may not be necessary. If that does not happen, it is open to the decree holder to execute the decree. For this purpose the law prescribes certain time limit. It is well known fact as circumstances change an everything in life gets altered, not only the existence of people, situation of property, the rights in respect thereof, alienations etc. For this reason, the law prescribes certain deadline within which decrees must be executed, as otherwise unsurmountable difficulties would arise if an abnormal long time has elapsed. It is in this background the law of limitation has laid down certain norms and the time limit within which the terms of the decree must be implemented. Inevitable consequences that if a decree is not given final shape within that period, the decree virtually will be lapsed."
18. The judgment proceeds under the footing that a proceeding under Section 54 and Order 20, Rule 18(1) is an execution proceeding. The learned single Judge has construed a ministerial act of the trial Court in transmitting the records to the Deputy Commissioner to effect partition and separate possession in terms of the decree as an execution proceedings. An application to that effect either under Section 54 or under O. 21, R. 18 CPC has been construed as an application under an execution petition. It is only upon this assumption that the learned Judge has held that the application for execution ought to have been filed within a period of 12 years.
19. I may recall again that there is no reference to the repeated pronouncements of this Court both by the learned single Judges and the Division Bench of this Court on the very question. It is difficult for me to accept this proposition of law laid down by the learned single Judge in Sunna. Sab case specially in the high the authoritative pronouncement of law by the Division Bench of this Court in Narasu and others case.
20. At this stage, the learned counsel for the petitioner submitted that the matter requires reconsideration in the hands of larger Bench and requested this Court to refer this question to the larger Bench. This submission has no merit in view of the pronouncement of law on the subject by the Division Bench of this Court. The learned counsel for the petitioner has failed to refer to any decision of the Supreme Court over-ruling the view of the Division Bench of this Court in Narasu and others case.
21. Therefore, I am of the opinion that the learned trial Judge is right in rejecting the objections raised by the defendants having regard to the proposition of law declared by this Court. I, therefore, do not find any merit in the revision. Revision therefore fails and is dismissed.
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