The Supreme Court, in Venu vs Ponnusamy Reddiar, has held that there is no limitation period for the execution of preliminary decree for partition.
In 1989, an application for execution of the decree was filed after 30 years of the preliminary decree for partition, which was passed in 1959. It prayed for the appointment of a court commissioner so as to carry out the preliminary decree. The high court had rejected the contention that since the application had been filed for the appointment of court commissioner, it ought to governed by provisions of Article 137 of the Limitation Act 1963.
A bench comprising Justice Arun Mishra and Justice Amitava Roy observed that a preliminary decree for partition crystallises the rights of parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings and till partition is carried out and final decree is passed, there is no question of any limitation running against right to claim partition as per preliminary decree.
“Even when application is filed seeking appointment of Commissioner, no limitation is prescribed for this purpose, as such, it would not be barred by limitation, lis continues till preliminary decree culminates in to final decree,” the bench said.
The court quoted in approval the Kerala High Court judgment in Laxmi & Ors vs A Sankappa Alwa & Ors, wherein it was observed: “When once the rights of the parties have been finally determined in a preliminary decree, an application by a party thereto or the legal representatives, for effecting the actual partition in accordance with the directions contained in the preliminary decree can never be construed to be an application within the meaning of the Limitation Act. It shall be taken to be an
application in a pending suit and therefore the question of limitation does not arise.”
Various judgments of Orissa, Calcutta, Punjab and Haryana high courts on the point were quoted in this judgment.
In 1989, an application for execution of the decree was filed after 30 years of the preliminary decree for partition, which was passed in 1959. It prayed for the appointment of a court commissioner so as to carry out the preliminary decree. The high court had rejected the contention that since the application had been filed for the appointment of court commissioner, it ought to governed by provisions of Article 137 of the Limitation Act 1963.
A bench comprising Justice Arun Mishra and Justice Amitava Roy observed that a preliminary decree for partition crystallises the rights of parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings and till partition is carried out and final decree is passed, there is no question of any limitation running against right to claim partition as per preliminary decree.
“Even when application is filed seeking appointment of Commissioner, no limitation is prescribed for this purpose, as such, it would not be barred by limitation, lis continues till preliminary decree culminates in to final decree,” the bench said.
The court quoted in approval the Kerala High Court judgment in Laxmi & Ors vs A Sankappa Alwa & Ors, wherein it was observed: “When once the rights of the parties have been finally determined in a preliminary decree, an application by a party thereto or the legal representatives, for effecting the actual partition in accordance with the directions contained in the preliminary decree can never be construed to be an application within the meaning of the Limitation Act. It shall be taken to be an
application in a pending suit and therefore the question of limitation does not arise.”
Various judgments of Orissa, Calcutta, Punjab and Haryana high courts on the point were quoted in this judgment.
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