Andhra HC (Pre-Telangana)
Jonnavaram Ibrahim And Anr. vs Uppaluru Jahara Bi (Died) Per Lrs. on 11 March, 2005
Equivalent citations: 2005(3)ALD539, 2005(3)ALT545
ORDER T.Ch. Surya Rao, J.
1. The revision petitioners, who are defendants in the suit seek to assail the docket order dated 26-11-2002 passed by the learned Principal Junior Civil Judge, Proddatur in I.A.No. 1360 of 2000 in O.S.No. 499 of 1979.
2. The petition in I.A.No. 1360 of 2000 was filed for passing final decree and for that purpose, for appointing a Commissioner to divide the properties by metes and bounds in accordance with the directions contained in the preliminary decree. That was resisted by the respondents therein, who are the revision petitioners herein by filing a counter. One of the grounds taken inter alia in the counter is limitation. According to the respondents, the preliminary decree having been passed on 4-10-1988, as per Article 137 of Schedule-I of Limitation Act, the three years period of limitation expired by 4-10-1991 and therefore, the petition in I.A.No. 1360 of 2000 was clearly barred by limitation.
3. After having heard either side, under the impugned docket order, the learned Judge appointed an Advocate-Commissioner for division of the petition schedule properties. The impugned order is cryptic and is as under.
"Heard. Sri T. Raja Rao, advocate is appointed as Commissioner to divide the petition schedule properties as per preliminary decree, present status and file report. His fee is fixed at Rs. 500/-. For report call on 26-12-2002."
4. Obviously, the Court has not dealt with the plea as regards the limitation, presumably for the reason that the main petition for passing final decree is still pending adjudication and appointment of Commissioner is only for dividing the properties. Of course, even at that stage the Court should have adverted to the contention raised and decided the same, inasmuch as appointment of Commissioner is a step in the process of passing the final decree and when once the report of the Commissioner is accepted without any demur on either side, passing of final decree will be only in terms of the division made by the Commissioner and there remains nothing further to be adjudicated by the Court in the said final decree petition.
5. Notwithstanding the same, since it is a case of passing of final decree in a suit for partition, question of limitation is not germane. When once the rights of the parties to specific shares in the joint family property are adjudicated and declared by directing that each one of them is entitled to a specific share in the property, there can be no point of limitation for filing of final decree petition in such a case. It is in this context germane to consider Section 2, Sub-section (2) of the C.P.C. which reads as under.
"2. Definitions:- In this Act, unless there is anything repugnant in the subject or context, (1) ................
(2) "decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include--
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation:- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
6. A perusal of the said provision clearly shows that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of and the decree becomes final when such adjudication completely disposes of the suit. A decree may be partly preliminary and partly final. From the above it is obvious that the suit filed for partition has not been conclusively determined by passing a preliminary decree. The suit becomes completely disposed of when the final decree is passed. Decree includes both preliminary decree and final decree. Therefore, the preliminary decree passed in the suit will not put an end to the suit and the suit continues for the purpose of passing of final decree in terms of preliminary decree. The application filed under Order XX Rule 18 C.P.C. for passing of final decree cannot be considered as independent application so as to attract the provisions of Article 137 of the Limitation Act. It is an application to be filed in a pending suit for further action in the matter in terms of the definition of decree contained in Section 2 Sub-section (2) of C.P.C. When the suit, for all practical purposes continues till final decree is passed, any application filed in the pending suit cannot be treated as an independent application so as to attract one or other relevant Article in Schedule-I appended to the Limitation Act. In my considered view, Article 137 of the Limitation Act has no application for the above reasons.
7. The plea taken by the respondents in the counter that the petition filed under Order XX Rule 18 C.P.C. is barred by limitation in view of the Article 137 of the Limitation Act is a misconceived plea. I am reinforced In my above view by the judgment of the Kerala High Court in Laxmi and Ors. v. A. Sankappa Aiwa and Ors., AIR 1989 Kerala 289 and Orissa High Court in Sudarsan Panda and Ors. v. Laxmidhar Panda and Ors., AIR 1983 Orissa 121.
8. Although this aspect has not been dealt with by the Court below it is not proper at this length of the time to remit the matter to the Court below for considering the above aspect which is a pure question of law and the same can be disposed of by this Court at this stage to avoid further delay in the matter and accordingly being disposed of in terms as above.
9. For the above reasons, the revision petition fails and is dismissed, but under the circumstances no order as to costs.