Sanna Palaiah Alias Palaiah vs Soncha Boraiah and Another

In this revision, the petitioner has attempted to reopen the settled law. This is a case where an application filed under Order 20, Rule 18 of Civil Procedure Code by the decree-holder was objected to by the defendants, but was overruled by the Trial Court.

Facts leading to this revision are as follows:

Respondents herein had filed a suit in Original Suit No. 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. Twenty-four years thereafter they have filed this application under Order 20, Rule 18 of Civil Procedure Code 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.

The learned Munsiff on consideration of the contentions raised at the bar, overruled the objections raised by the defendants-respondents. Hence, this revision.

Sri Kaleemulla Shariff, learned Counsel for the petitioner has contended that in view of the latest decision of this Court in M. Sunnasab (since deceased) by L.Rs. v Rameezabi (since deceased) by L.Rs, 1996(6) Kar. L.J. 86, the petition filed under Order 20, Rule 18 of Civil Procedure Code is an execution petition which is filed after 12 years, is barred by time and therefore the order of the Trial Court overruling the objections raised by the defendants is not sustainable in law.

Per contra it is contended by the learned Counsel for the respondents that an application under Order 20, Rule 18 of Civil Procedure Code is not an application for execution of the decree. This question is no longer in controversy in view of the settled law and therefore justified the impugned order.

The short question that arises for consideration in this revision is whether an application under Order 20, Rule 18 of Civil Procedure Code is an application for execution of a decree.

The learned Counsel has also relied upon the provisions, Civil Procedure Code enumerated in Section 54 and Order 20, Rule 18 of Civil Procedure Code. Section 54 of Civil Procedure Code 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 sub-ordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estate".

Order 20, Rule 18 of Civil Procedure Code 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 in 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 such declaration and with the provisions of Section 54.

(2) If and in so far 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".

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 subordinate to him. The provisions of Order 20, Rule 18 does not contemplate any application or petition by the decree-holder for transmission of papers to the Collector.

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 of Civil Procedure Code. 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 on 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.

In this regard, reference may be made to the pronouncement of the Judicial Committee of the Privy Council in Jadunath Roy and Others v Parameswar Mullick and Others, 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.

The question whether a decree passed under Order 20, Rule 18(1) of Civil Procedure Code 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 Bin Ningappa Moture of Kini and Others v Narayan Krishnaji Karguppikar and Others, 1959 Mys. L.J. 103. 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 was 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. So far 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 Rule 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 Section 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 Rule 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."

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, AIR 1945 Bom. 338, D.M. Jacinto and Another v J.D.B. Fernandez, AIR 1939 Bom. 454, and a Full Bench decision of Madras High Court in Sree Rajah Mantripragada Venkataraghava Rao Bahadur, Zamindar Garu and Others v Sri Rajah Mantripragada Venkata Hanumantha Rao Bahadur, Zamindar Garu (deceased) by L.Rs. and Others, AIR 1945 Mad. 336.

It is relevant to note here that in the case decided by the Division Bench of this Court in Narasu''s case, supra, 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:

"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 of Civil Procedure Code 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 Order 21 of the Civil Procedure Code.

The learned Single Judge of this Court (Somnath Iyer, J.) in Muniappa v Subba Reddy, 1962 Mys. L.J. (Supp.) 471, held the same view, though there is no reference to the decision of Division Bench in Narasu''s case, supra.

This question cropped up again in Arale Nanjundappa v Sonnappa and Others, 1964(1) Mys. L.J. 278. 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''s case, supra.

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 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".

Whether the provisions of Section 54 of Civil Procedure Code contemplates execution proceedings in cases of decrees for partition incidentally came up for consideration in Ramagowda Rudregowda Patil and Others v Smt. Lagmavva and Others, 1985(1) Kar. L.J. 209. The Court has also referred to the scope of Order 20, Rule 18(1) of the Civil Procedure Code. The contentions raised therein and the context under which those contentions were decided are entirely different. But, it is held that under Section 54 of the Civil Procedure Code, the execution is not at all contemplated in such cases of decrees for partition.

The controversy in this regard surfaced as a result of the pronouncement of law by the learned Single Judge of this Court in Sunnasab''s case, supra. The only case law referred to is the decision in Ramagowda Rudregowda Patil''s case, supra. 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 of Civil Procedure Code, 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 Ramagowda Rudregowda Patil''s case, supra, 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 Sunnasab''s case, supra, in the following words:

"This is a full-fledged 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 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 and 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".

The judgment proceeds under the footing that a proceedings 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 Order 21, Rule 18 of Civil Procedure Code, 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.

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 Sunnasab''s case, supra, specially in the light of the authoritative pronouncement of law by the Division Bench of this Court in Narasu''s case, supra.

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 overruling the view of the Division Bench of this Court in Narasu''s case, supra.

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.