# BIMAL KUMAR & ANOTHER v. SHAKUNTALA DEBI & OTHERS

- **Citation:** [2012] 2 S.C.R. 195
- **Court:** Supreme Court of India
- **Decided:** 2012-02-27
- **Case number:** Civil Appeal No. 2524 of 2012
- **Bench:** Dalveer Bhandari, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bimal-kumar-another-v-shakuntala-debi-others-28117
- **Pages:** 24

## Headnote

DECREE:
A
B
Final decree and Preliminary decree - Distinction c
between -Discussed.
Preliminary decree - Compromise application - Tenor of
application showed that the parties to the compromise settled
the entire controversy and they were in separate and exclusive
possession of the properties allotted to their respective shares
D
- The compromise application did not contain any clause
regarding the future course of action - Whether the decree
passed by the court of first instance on the basis of
compromise had become enforceable or it had the status of
a preliminary decree requiring completion of a final decree
E
proceeding to make it executable - Held: The parties were
absolutely conscious and rightly so, that their rights had been
fructified and their possession had been exclusively
determined - They were well aware that the decree was final
in nature as their shares were allotted and nothing remained
F
to be done by metes and bounds - Their rights had attained
finality and no further enquiry from any spectrum was required
to be carried out - The whole thing had been embodied in the
decree passed on the foundation of compromise - Thus the
compromise decree was the final decree.
G
LIMITATION ACT, 1963: Article 136 - Execution
application - Whether hit by bar of limitation - Partition suit -
Predecessor of appellant one of the defendant proceeded ex
195
H
196
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A parte - Compromise decree - Subsequent suit for partition
filed by appellants on the ground that earlier decree was
obtained by fraud - Dismissed - Execution application filed
. after limitation period - Objections by appellants that execution
proceeding was barred by limitation - Held: There was no stay
B of the earlier judgment or any proceedings emanating
therefrom - There was no impediment or disability in the way
of the decree holder to execute the decree but the same was
not done - Therefore, initiation of execution proceedings was
indubitably barred by limitation.
c
Words and phrases: Compromise/Settlement - Meaning
of.
A partition suit was compromised between the
parties. 'K', the predecessor of the appellants although
D had appeared in the suit and filed written statement,
however, thereafter chose not to contest. The
compromise petition stated that the parties were in
separate and exclusive possession of the properties
respectively belonging to them and had obtained
E separate and exclusive possession of the properties
allotted to their respective shares. The tried court accepted
the petition of compromise and passed a compromise
decree on 3.4.1964 treating 'K' ex parte. 'K' initiated a
fresh partition suit on the ground that the earlier decree
F was obtained by fraud. The said suit was dismissed on
27th August, 1994. The appeal thereagainst was
dismissed for want of prosecution on 6.1.2004. At this
juncture, the respondents filed execution case seeking
execution of the compromise decree. In the meantime, 'K'
G died and the execution was levied against his legal heirs,
the appellants. An objection was raised by the appellants
that the execution proceeding was barred by limitation.
The Sub-Judge dismissed the execution proceedings on
the ground that it was absolutely barred by limitation. The
H single judge of the High Court allowed the revision on the
BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &
197
ORS.
ground that the execution case was not barred by
A
limitation.
The questions which arose for consideration in the
instant appeal were whether the decree passed by the
court of first instance on the basis of compromise had
8
become enforceable or it had the status of a preliminary
decree requiring completion of a final decree proceeding
to make it executable and; whether the execution
proceeding was untenable being hit by the law of
limitation.
C
Allowing the appeal, the Court
HELD: 1. Perusal of the tenor of the entire
compromise application showed that the parties to the
compromise settled the entire controversy. The
D
defenda

## Text

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[2012] 1 S.C.R. 195
BIMAL KUMAR & ANOTHER
v.
SHAKUNTALA DEBI & OTHERS
(Civil Appeal No. 2524 of 2012)
"FEBRUARY 27, 2012
[DALVEER BHANDARI AND DIPAK MISRA, JJ.]
DECREE:
A
B
Final decree and Preliminary decree - Distinction c
between -Discussed.
Preliminary decree - Compromise application - Tenor of
application showed that the parties to the compromise settled
the entire controversy and they were in separate and exclusive
possession of the properties allotted to their respective shares
D
- The compromise application did not contain any clause
regarding the future course of action - Whether the decree
passed by the court of first instance on the basis of
compromise had become enforceable or it had the status of
a preliminary decree requiring completion of a final decree
E
proceeding to make it executable - Held: The parties were
absolutely conscious and rightly so, that their rights had been
fructified and their possession had been exclusively
determined - They were well aware that the decree was final
in nature as their shares were allotted and nothing remained
F
to be done by metes and bounds - Their rights had attained
finality and no further enquiry from any spectrum was required
to be carried out - The whole thing had been embodied in the
decree passed on the foundation of compromise - Thus the
compromise decree was the final decree.
G
LIMITATION ACT, 1963: Article 136 - Execution
application - Whether hit by bar of limitation - Partition suit -
Predecessor of appellant one of the defendant proceeded ex
195
H
196
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A parte - Compromise decree - Subsequent suit for partition
filed by appellants on the ground that earlier decree was
obtained by fraud - Dismissed - Execution application filed
. after limitation period - Objections by appellants that execution
proceeding was barred by limitation - Held: There was no stay
B of the earlier judgment or any proceedings emanating
therefrom - There was no impediment or disability in the way
of the decree holder to execute the decree but the same was
not done - Therefore, initiation of execution proceedings was
indubitably barred by limitation.
c
Words and phrases: Compromise/Settlement - Meaning
of.
A partition suit was compromised between the
parties. 'K', the predecessor of the appellants although
D had appeared in the suit and filed written statement,
however, thereafter chose not to contest. The
compromise petition stated that the parties were in
separate and exclusive possession of the properties
respectively belonging to them and had obtained
E separate and exclusive possession of the properties
allotted to their respective shares. The tried court accepted
the petition of compromise and passed a compromise
decree on 3.4.1964 treating 'K' ex parte. 'K' initiated a
fresh partition suit on the ground that the earlier decree
F was obtained by fraud. The said suit was dismissed on
27th August, 1994. The appeal thereagainst was
dismissed for want of prosecution on 6.1.2004. At this
juncture, the respondents filed execution case seeking
execution of the compromise decree. In the meantime, 'K'
G died and the execution was levied against his legal heirs,
the appellants. An objection was raised by the appellants
that the execution proceeding was barred by limitation.
The Sub-Judge dismissed the execution proceedings on
the ground that it was absolutely barred by limitation. The
H single judge of the High Court allowed the revision on the
BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &
197
ORS.
ground that the execution case was not barred by
A
limitation.
The questions which arose for consideration in the
instant appeal were whether the decree passed by the
court of first instance on the basis of compromise had
8
become enforceable or it had the status of a preliminary
decree requiring completion of a final decree proceeding
to make it executable and; whether the execution
proceeding was untenable being hit by the law of
limitation.
C
Allowing the appeal, the Court
HELD: 1. Perusal of the tenor of the entire
compromise application showed that the parties to the
compromise settled the entire controversy. The
D
defendant No. 3 who was the predecessor-in-interest of
the appellants was not allotted any share. As is
perceptible from the terms of the compromise which
formed a part of the decree, the parties had conceded that
they were in separate and exclusive possession of the
E
properties respectively belonging to them and further had
obtained separate and exclusive possession of the
properties allotted to their respective shares. Thus, their
respective shares and exclusive possession were
admitted on the basis of the said compromise petition and
F
a decree had been drawn up. The Court had taken note
of the contents of the compromise wherein it had been
prayed that the decree be passed in accordance with the
terms of the compromise. It was clearly evincible that the
Court had proceeded on the basis that it was finally G
disposing of the suit in accordance with the terms set out
in the compromise petition. The factum of exclusive
possession had also been recorded in the application of
compromise. It had been clearly stated that parties have
been put in separate possession of the various
H
198
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A immovable properties. Even in the counter affidavit filed
by the respondents, it was admitted that possession had
remained with the parties as per the allotment. [Paras 16,
17) [206~8-F]
..
8 ···
2. A preliminary decree is one which declares the
·rights and liabilities of the parties leaving the actual result
. to be worked out in further proceedings. Then, as a result
.of the further inquiries conducted pursuant to the
preliminary decree, the rights of the parties are finally
C determined and a decree is passed in accordance with
such determination, which is the final decree. It is clear
that in the case at hand, the parties entered into a
compromise and clearly admitted that they were in
separate and exclusive possession of the properties and
0 the same had already been allotted to them. It was also
admitted that they were in possession of their respective
shares and, therefore, no final decree or execution was
required to be filed. It is demonstrable that the
compromise application did not contain any clause
E regarding the future course of action. The parties were
absolutely conscious and rightly so, that their rights had
been fructified and their possession had been exclusively
determined. They were well aware that the decree was
final in nature as their shares were allotted and nothing
F remained to be done by metes and bounds. Their rights
had attained finality and no further enquiry from any
spectrum was required to be carried out. The whole thing
had been embodied in th'e· decree passed on the
foundation of compromise. [para 22, 23] [209-D-G-H;
G 210-8]
3. The term 'compromise' essentially means
settlement of differences by mutual consent. In such
process, the adversarial claims come to rest. The cavil
between the parties is given a decent burial. A
H compromise which is arrived at by the parties puts an
BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &
199
ORS.
end to the litigative battle. Sometimes the parties feel that A
it is an unfortunate bitter struggle and allow good sense
to prevail to resolve the dispute. In certain cases, by
intervention of well-wishers, the conciliatory process
commences and eventually, by consensus and
concurrence, rights get concretised. A reciprocal
B
settlement with a clear mind is regarded as noble. It
signifies magnificent and majestic facets of the human
mind. The exalted state of affairs brings in quintessence
of sublime solemnity and social stability. In the instant
case, as the factual matrix would reveal, a decree came
C
to be passed on the bedrock of a compromise in entirety
from all angles leaving nothing to be done in the future.
The curtains were really drawn and the Court gave the
stamp of approval to the same. Thus, the inescapable
conclusion is that the compromise decree dated D ·
03.04.1964 was a final decree. [Para 24] [210-C-F]
4. It is well settled in law that a preliminary decree
declares the rights and liabilities, but in a given case, a
decree may be both preliminary and final and that apart,
a decree may be partly preliminary and partly final. What
E
is executable is a final decree and not a preliminary
decree unless and until the final decree is a part of the
preliminary decree. That apart, a final decree proceeding
may be initiated at any point of time. [Para 27] [211-G-H;
212-A-B]
Rachakonda Venkat Rao And Others v. R. Satya Bai (0)
by L.R. And Another AIR (2003) SC 3322: 2003 (3) Suppl.
SCR 629; Renu Devi v. Mahendra Singh and others AIR
F
2003 SC 1608: 2003 (1) SCR 820 - relied on.
G
Muzaffar Husain v. Sharafat Hussain AIR 1933 Oudh
562; Raghubir Sahu v. Ajodhya Sahu AIR 1945 Pat 482 -
approved.
5. Perusal of the Article 136 of Limitation Act showed
H
200
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A that an application for execution of a decree (other than
a decree granting a mandatory injunction) or order of any
civil court is to be filed within a period of twelve years. In
the case at hand, the compromise decree had the status
of a final decree and was immediately executable. The
B period during which the suit and appeal preferred by the
appellants remained pendency was not to be excluded
for the purpose of execution. There was no stay of the
said judgment or any proceedings emanating therefrom.
In the absence of any interdiction from any court, the
C decree-holder was entitled to execute the decree. There
was no impediment or disability in the way of the
respondents to execute the decree but the same was not
done. Therefore, the irresistible conclusion is that the
initiation of execution proceedings was indubitably
D barred by limitation. Thus analyzed, the reasons ascribed
by the single Judge are absolutely unsustainable. The
period of limitation stipulated under Article 136 of the Act
cou.ld not have been condoned. The reliance placed on
the decision in Bharti Devi is totally misconceived
E inasmuch as in the said case, the execution proceeding
was initiated for permanent injunction. [Paras 30, 32, 35)
[213-C; 217-E-H; 218-A-B]
Hasham Abbas Sayyad v. Usman Abbas Sayyad and
others (2007) 2 SCC 355 : 2006 (10) Suppl.SCR 740;
F Bikoba Deora Gaikwad and others v. Hirabai Marutirao
Ghorgare and others (2008) 8 SCC 198: 2008 (9) SCR 1038;
Dr. Chiranji Lal (DJ by LRs. v. Hari Das (DJ By LRs., (2005)
10 SCC 746 : 2005 (1) Suppl. SCR 359; Ram Bachan Rai
and others v. Ram Udar Rai and others (2006) 9 sec
G 446~2006 (1) Suppl. SCR 896; Ratan Singh v. Vijay Singh
and Ors. 2000 (8) SCALE 214; Manohar v. Jaipa/sing AIR
2008 SC 429: 2007 (12) SCR 364 - relied on.,
Bharti Devi v. Fagu Mahto 2009 (3) JLJRr~o: AIR 2010
H Jhar 10 - held inapplicable.
I
I
BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &
201
ORS.
Case Law Reference:
AIR 2010 Jhar 10
held inapplicable Paras 13,
26, 35
2003 (3) Suppl. SCR 629
relied on
Para 18
AIR 1933 Oudh 562
approved
Para 19
AIR 1945 Pat 482
approved
Para 20
2003 (1) SCR 820
relied on
Para 21
2006 (10) Suppl. SCR 740 relied on
Para 27
2008 (9) SCR 1038
relied on
Para 28
2005 (1) Suppl. SCR 359
relied on
Paras 30,
31
2006 (1) Suppl. SCR 896
relied on
Para 31
2000 (8) SCALE 214
relied on
Para 32
2007 (12) SCR 364
relied on
Para 34
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2524 of 2012.
From the Judgment & Order dated 19.08.2009 of the High
Court of Jharkhand at Ranchin Civil Revision No. 53 of 2007.
Ajit Kumar Sinha, Ambhoj Kumar Sinha for the Appellants.
S.S. Shamshery, Bhupendar Yadav, Babita Yadav, Bhakti
Vardhan Singh, R.C. Kohli for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
A
B
c
D
E
F
G
2. In this appeal, the assail is to the order dated 19.9.2009
passed by the learned single Judge of Jharkhand High Court
at Ranchi in C.R. No. 53 of 2007 b~ which he has dislodged
H
202
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A the order dated 10.7.2006 passed by the learned Sub-Judge
(I), Ranchi, whereby he had dismissed the Execution Case No.
8 of 2004 filed by the respondents as being barred by limitation.
3. Filtering the unnecessary details, the facts. which are
8
requisite to be frescoed for the purpose of disposal of the
present appeal are that one Kanilal Kasera filed a Partition Suit
No. 131 of 1962 against his father, Nanak Kasera, and other
brothers. The suit was compromised leaving aside Kishori Lal
Kasera, the father of the present appellants, and a joint petition
of compromise between the plaintiff and the defendant Nos. 1,
C 2, 4 to 9 and 11 to 18 was filed. It is worth noting that Kishori
Lal Kasera had appeared in the suit and filed the written
statement but thereafter chose not to contest.
4. The petition of compromise contained that the defendant
D Nos. 1, 9, 11 and 12 had relinquished and given up all their
interests in item Nos. 3 and 8 of the suit schedule of property,
being Holding No. 285 of new holding No. 509A of Ward No. II
situated on portion of Municipal Survey Plot No. 621 and
. Holding No. 431 of Ward No. 1 situated on Municipal Survey
E Plot No. 902, and further declared that they had no claim or
concern with any other properties involved in the suit; that the
business, namely, "SEVEN BROTHERS STEEL FURNITURE
WORKS", item 5 of the schedule, belonged exclusively to the
defendant No. 2, Moti Lal Kasera, and neither the plaintiff nor
F any of the other defendants either ever had or shall ever have
any claim or interest; and that one half of the house and
premises comprised in Municipal Holding No. 431, Ward No.
1, item 3 of the schedule, and half of Holding No. 509 A of Ward
II, situated on portion of M.S. Plot No. 631, item 2 of the
G schedule, shall belong to the defendant No. 2 with all the
liabilities and outstanding dues and the plaintiff and the other
defendants shall have no liabilities or interest in tne said prop
rties; and that the business carried on under the name of
'Chotanagpur Tin Works', item 6A of the schedule, was the sole
separate business of the defendant No. 5, Prakash Kumar
H
BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &
203
ORS. [DIPAK MISRA, J.]
Kasera, and the plaintiff or the other defendants had no claim
A
on the said property.
5. The application further contained that the partition of the
house and premises comprised in Holding No. 431 of Ward I,
item 3 of the schedule, marked in green colour in the exhibit,
shall belong exclusively to the defendant no. 4, Mohan Lal
Kasera, and neither the plaintiff nor the other defendants shall
have any claim or interest; that the business of iron shop at
Bazaar Tan Ranchi, item 6 (c) of the schedule, was the separate
B
and exclusive business of the defendant No. 6, Surendra Lal
C
Kasera, and none others had any claim or interest and the
portion of the building and premises comprised in Municipal
Holding No. 431 of Ward No. I, item 3 of the schedule, marked
in yellow colour, shall also belong to the defendant No. 6 and
no one else had any claim or interest; that the portion of the
building and premises comprised in Municipal Holding No. 431
D
of Ward No. I, item 3 of the schedule, marked in blue colour,
and one-half of the shop premises comprised in Holding No.
509 A over portion of M.S. Plot No. 621 being item No. 2 of
the schedule to the plaint shall exclusively belong to the plaintiff
and he shall have absolute right over the same.
6. That apart, the plaintiff had agreed to pay up all
outstanding dues of Bindrilal Agarwalla against the defendant
No. 1 and none of the defendants shall be liable for the same.
7. It was also agreed upon that the House situated on
Holding 6 Ward II of the Ranchi Municipality being comprised
of Khata No. 71 plot No. 72 area 61 decimal and plot No. 79
area 7~ decimal total area measuring 14 decimal, being item
E
F
No. 4 of the schedule and the house and premises comprised
of Holding No. 180 Ward Ill being survey plot No. 92 area 0.30
G
Karies and Municipal Survey Plot No. 92 area 0.063 Karies
total area 0.093 Karies of Hajamtolio, Ranchi being item No.
5 were separate and exclusive properties of Smt. Rama Devi
and shall belong exclusively to the defendant No. 7, Srimati
Rama Devi, the widow of Hira Lal Kasera, and no one else shall
H
204
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A have any claim or concern in the said property; that the shop·
premises being holding No. 509 B of Ward II of Ranchi
Municipality situated on portion of M.S. Plot No. 621 being item
No. 1 of the schedule and the house premises comprised of
Holding No. 133(g) of Ward 11 being item No. 8 and the
B properties comprised Holding No. 145 A of Ward No. I
measuring 6% decimals being plot No. 268 of Khata No. 34 of
Village Konka, being item No. 9 of the schedule belonged to
the defendant No. 8, Sreemati Munitri Debi, wife of Prakash
Lal Kasera, the defendant No. 5, and none had any claim or
c interest; that the house and the premises situated at Madhukam,
Ranchi comprised in Holding No. 318 of Ward I being item No.
10 of the schedule was the property of the defendant No. 13,
Shreemati Deojani Debi, wife of Moti Lal Kasera, the defendant
No. 2.
D
8. It was stipulated that the business and properties
mentioned in item Nos. 6(b) and 7 were erroneously included
in the suit.
9. Be it noted, in Clause (K) of the petition of compromise,
E it was clearly stated as follows: -
F
G
"k) That the parties are in separate and exclusive
possession of the properties respectively belonging to
them and have obtained separate and exclusive
possession of the properties allotted to their respective
shares."
10. The learned trial Judge being satisfied accepted the
petition of compromise and passed a compromise decree on
3.4.1964 treating Kishori Lal Kasera ex parte:
11. When the matter stood thus, the legal representatives
of Kishori Lal Kasera, the present appellants, initiated a fresh
partition suit No. 49 of 1973 on the ground that the earlier
decree was obtained by fraud. In the said suit, they claimed 1/
H 11th share of the property for themselves which was involved
BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &
205
ORS. [DIPAK MISRA, J.]
in the earlier suit being P .S. No. 131 of 1962. The said suit was
A
dismissed on 27th August, 1994. Being dissatisfied with the
said decision, Kishori Lal Kasera preferred Title Appeal No.
109 of 1994 which was dismissed for want of prosecution on
6.1.2004. At this juncture, the respondents herein filed
execution case No. 8 of 2004 seeking execution of the decree
B
passed in P .S. No. 131 of 1962. Be it noted, in the meantime,
Kishori Lal Kasera had breathed his last and, therefore, the
execution was levied against the legal heirs, the appellants
herein.
12. An objection was raised by the appellants that the
execution proceeding was barred by limitation and hence,
deserved to be dismissed. The learned Sub-Judge dismissed
the execution proceedings on the ground that it was absolutely
barred by limitation.
c
D
13. Aggrieved by the said order, the respondents preferred
C.R. No. 53 of 2007 under Section 115 of the Code of Civil
Procedure. (for short 'the CPC') and the learned single Judge
allowed the said Revision on the ground that the execution case
preferred by the revisionists was not barred by limitation. For
E
the said purpose, the learned single Judge placed reliance on
the decision in Bharti Devi v. Fagu Mahto 1• The legal
substantiality of the said order is the subject-matter of challenge
in this appeal.
14. We have heard Mr. Amboj Kumar Sinha, learned
counsel for the appellants, and Mr. S.S. Shamshery, learned
counsel for the respondents.
F
15. The two seminal and spinal issues that had emanated
before the executing court and the High Court and have also
G
spiralled to this Court are whether the decree passed by the
court of first instance on the basis of compromise had become
enforceable or it had the status of a preliminary decree
requiring completion of a final decree proceeding to make it
1.
2009 (3) JLJR 90 : AIR 2010 Jhar 10.
H
206
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A executable and whether the execution proceeding was
untenable being hit by the law of limitation.
16. We shall advert to the first issue first. On a perusal of
the tenor of the entire compromise application, we are of the
8
considered view that the parties to the compromise settled the
entire controversy. The defendant No. 3 who was the
predecessor-in-interest of the present appellants was not
allotted any share. As is perceptible from the terms of the
compromise which formed a part of the decree, the parties had
C conceded that they were in separate and exclusive possession
of the properties respectively belonging to them and further had
obtained separate and exclusive possession of the properties
allotted to their respective shares. Thus, their respective shares
and exclusive possession were admitted on the basis of the
said compromise petition and a decree had been drawn up.
D The Court had taken note of the contents of the compromise
wherein it had been prayed that the decree be passed in
accordance with the terms of the compromise. It is clearly
evincible that the Court had proceeded on the basis that it was
finally disposing of the suit in accordance with the terms set out
E in the compromise petition. The factum of exclusive possession
had also been recorded in the application of compromise. It
had been clearly stated that parties have been put in separate
possession of the various immovable properties.
F
G
H
17. Quite apart from the above, in the counter affidavit filed
by the respondents, it is admitted that possession had
remained with the parties as per the allotment. It is profitable
to reproduce the said portion of the counter affidavit:-
"It is pertinent to mention here that the parties who were
allotted the share as per the decree were stated to be in
possession of their share and it was written in the judgment
that no preliminary, final decree or execution was required
to be filed. Though Kishori Lal Kasera had full knowledge
of the compromise decree but he did not challenge the
decree within the period of limitation therefore the
BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &
207
ORS. [DIPAK MISRA, J.)
compromise decree became final and absolute against all
A
the parties, including Kishori Lal Kasera."
18. Despite the aforesaid, a contention has been advanced
by the learned counsel for the respondents that in a suit for
partition, drawing up of a final decree is imperative. In this
B
context, we may usefully refer to the decision in Rachakonda
Venkat Rao And Others v. R. Satya Bai (0) by L.R. And
Another2 wherein it has been stated as follows:-
"The compromise application does not contain any clause
regarding future course of action which gives a clear
C
indication that nothing was left for future on the question
of partition of the joint family properties. The curtain had
been finally drawn."
After so stating, the Bench proceeded to observe as follows:-
D
"The decree as a matter of fact le aves nothing for future.
As noticed earlier in a preliminary decree normally the
court declares the shares of the parties and specifies the
properties to be partitioned in the event of there being a
dispute about the properties to be partitioned. After
E
declaring the shares of the parties and the properties to
be partitioned, the Court appoints a Commissioner to
suggest mode of partition in terms of 0. XXVI, R. 13,
C.P.C. A perusal of Order XXVI, R. 13 C.P.C. shows that
it comes into operation after a preliminary decree for
F
partition has been passed. In the present case, there was
no preliminary decree for partition and, therefore, R. 13 of
0. XXVI does not come into operation. If the plaintiffs
considered the decree dated 13th July, 1978 as a
preliminary decree, why did they wait to move the
G
application for final decree proceedings for 13 years? The
only answer is that the plaintiffs knew and they always
believed that the 1978 decree was a final decree for
partition and it was only passage of time and change in
2.
AIR 2003 SC 3322 • 2003 7 sec 452.
.H
208
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A
value of the properties which was not up to their
expectations that drove plaintiffs to move such an
application."
19. In Muzaffar Husain v. Sharafat Hussain3, it has been
8 . held as follows:-
"We think the decree passed by the civil Court should be
treated as a final order for effecting a partition. It is true
that the decree was passed on the basis of a compromise
filed by the parties, but the fact remains that it was passed
C
in a partition suit, and had the effect of allotting a specific
portion of the property to the plaintiff as his share in the
property. The conclusion at which we have arrived is
supported by a decision of the Madras High Court in
D
E
F
Thiruvengadathamiah v. Mungiah4"
20. In Raghubir Sahu v. Ajodhya Sahu5, the Division
Bench of Patna High Court had ruled thus: -
"In the present case, the decree was passed on
compromise. It was admitted that by the compromise, the
properties allotted to the share of each party were clearly
specified and schedules of properties allotted to each were
appended to the compromise petition. Therefore, no
further inquiry was at all necessary. In such circumstances,
the decree did not merely declare the rights of the several
parties interested in the properties but also allotted the
properties according to the respective shares of each
party. Therefore, it was not a preliminary decree but it was
the final decree in the suit"
G
21. In Renu Devi v. Mahendra Singh and others6, the
effect of a compromise decree and allotment of shares in
3.
AIR 1933 Oudh 562.
4.
(1912) ILR 35 Mad 26.
5.
AIR 1945 Pat 482.
H
6.
AIR 2003 SC 1608.
BIMAL KUMAR & ANR. Ii. SHAKUNTALA DEBI &
209
ORS. [DIPAK MISRA, J.]
pursuance of the said decree was dealt with. The two- Judge
A
Bench referred to the decisions in Raghubir Sahu v. Ajodhya
Sahu (supra) and Muzaffar Husain (supra) and opined that the
law had been correctly stated in the said authorities.
22. In the said case, after referring to CPC by Mulla, this
8
Court, while drawing a distinction between the preliminary and
the final decree, has stated that a preliminary decree declares
the rights or shares of the parties to the partition. Once the
shares have been declared and a further inquiry still remains
to be done for actually partitioning the property and placing the
C
parties in separate possession of the divided property, then
such inquiry shall be held and pursuant to the result of further
inquiry, a final decree shall be passed. A preliminary decree
is one which declares the rights and liabilities of the parties
leaving the actual result to be worked out in further proceedings.
Then, as a result of the further inquiries conducted pursuant to
D
the preliminary decree, the rights of the parties are finally
· determined and a decree is passed in accordance with such
determination, which is the final decree. Thus, fundamentally,
the distinction between preliminary and final decree is that: a
preliminary decree merely declares the rights and shares of the
E
parties and leaves room for some further inquiry to be held and
conducted pursuant to the directions made in the preliminary
decree which inquiry having been conducted and the rights of
the parties finally determined a decree incorporating such
determination needs to be drawn up which is the final decree.
F
23. Applying the principles laid down in the aforesaid
authorities, it is graphically clear that in the case at hand, the
parties entered into a compromise and clearly admitted that
they were in separate and exclusive possession of the
G
properties and the same had already been allotted to them. It
was also admitted that they were in possession of their
respective shares and, therefore, no final decree or execution
was required to be filed. It is demonstrable that the compromise
application does not contain any clause regarding the future
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210
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A course of action. The parties were absolutely conscious and
rightly so, that their rights had been fructified and their
possession had been exclusively determined. They were well ·
aware that the decree was final in nature as their shares were
allotted and nothing remained to be done by metes and bounds.
s Their rights had attained finality and no further enquiry from any
spectrum was required to be carried out. The whole thing had
been embodied in the decree passed on the foundation of
compromise.
24. It is to be borne in mind that the term 'compromise'
C essentially means settlement of differences by mutual consent.
In such process, the adversarial claims come to rest:The cavil
between the parties is given a decent burial. A compromise
which is arrived at by the parties puts an end to the litigative
battle. Sometimes the parties feel that it is an unfortunate bitter
D struggle and allow good sense to prevail to resolve the dispute.
In certain cases, by intervention of well-wishers, the con~iliatory
process commences and eventually, by consensus and.
concurrence, rights get concretised. A reciprocal settlement with
a clear mind is regarded as noble. It signifies magnificent and
E majestic facets of the human mind. The exalted state of affairs
brings in quintessence of sublime solemnity and social stability.
In the present case, as the factual matrix would reveal, a decree
came to be passed on the bedrock of a compromise in entirety
from all angles leaving nothing to be done in the future. The
F curtains were really drawn and the Court gave the stamp of
approval to the same. Thus, the inescapable conclusion is that
the compromise decree dated 03.04.1964 was a final decree.
25. Presently, we shall dwell upon the issue whether the
G execution levied by the respondents was barred by limitation
or not. The executing Court, by its order dated 10.07.2006,
accepted the plea of the present appellants and came to hold
that the execution petition filed by the decree holder was
hopelessly barred by limitation. In the Civil Revision, the learned
H Single Judge overturned the decision on several counts; (i) that
BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &
211
ORS. [DIPAK MISRA, J.]
no steps were taken and no objection was raised by the father
A
of the opposite parties for setting aside the ex parte decree
passed in the first suit, if he was aggrieved by it, for about 9
years, though he had appeared and had full knowledge about
the first suit; (ii) that as per the compromise decree, the parties
were in possession of the respective shares allotted to them
8
and, accordingly, neither preliminary nor final decree was drawn
up and there was no occasion for the petitioners for filing
execution case for enforcement of the compromise decree; (iii)
that the second suit challenging the compromise decree
passed in the first suit remained pending for about 21 years;
C
(iv) that the appeal filed against the dismissal of the second
suit also remained pending for about 10 years; (v) that after the
appeal was dismissed and the judgment and decree passed
in the second suit became final, the execution case was filed
by the petitioner alleging dispossession from the family
business being run in the ground floor of the building; and (vi)
D
that on the basis of such allegation, the compromise decree
passed in the first suit became enforceable.
26. Apart from the aforesaid reasons, the learned Single
Judge has opined that after the. execution case was admitted
E
by the predecessor of the learned Sub-Judge presumably after
condoning the delay, the successor should not have dismissed
it on the ground of limitation. He placed reliance on the decision
rendered in Bharti Devi (supra) and buttressed the reasoning
that there was no delay in levying of the execution proceeding.
F
The learned single Judge further took note of the pending Misc.
Appeal No. 369 of 2008 preferred by the present appellants
to reinforce the conclusion.
27. It is well settled in law that a preliminary decree
declares the rights and liabilities, but in a given case, a decree
G
may be both preliminary and final and that apart, a decree may
. · be partly preliminary and partly final. It has been so held in
Rachakonda Venkat Rao v. R. Satya 8aF. It is worth noting
1.
(2003) 1 sec 452.
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SUPREME COURT REPORTS
[2012] 2 S.C.R.
A that what is executable is a final decree and not a preliminary
decree unless and until the final decree is a part of the
preliminary decree. That. apart, a final decree proceeding may
be initiated at any point of time. It has been so enunciated in
Hasham Abbas Sayyad v. Usman Abbas Sayyad and
8 others8.
28. In Bikoba Deora Gaikwad and others v. Hirabai
Marutirao Ghorgare and others9, a two-Judge Bench of this
Court has held that only when a suit is completely disposed of,
thereby a final decree would come into being. In the said case,
C it has also been laid down that an application for taking steps
towards passing a final decree is not an execution application
and further, for the purposes of construing the nature of the
decree, one has to look to the terms thereof rather than
D
speculate upon the court's intention.
29. Regard being had to the aforesaid principles and
having opined that the decree passed on the basis of a
compromise in the case at hand is the final decree, it is to be
addressed whether the execution is barred by limitation. Article
E 136 of the Limitation Act (for brevity 'the Act') reads as follows:-
"Description of
application
136. For the
Period of Time from which period
Limitation begins to run
Twelve
When the decree or order
F
execution of
years
becomes enforceable or
where the decree or any
subsequent order directs any
payment of money or the
delivery of any property to be
made at a certain date or at
recurring periods, when
default in making the payment
or delivery in respect of which
G
any decree
(other than a
decree granting
a mandatory
injunction) or
order of any
civil court.
8.
(2007) 2 sec 355.
H 9.
(2008) 8 sec 198.
BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &
213
ORS. [DIPAK MISRA, J.]
execution is sought, takes
A
. place;
Provided that an application
for the enforcement or
execution of a · decree
granting a perpetual injunction
shall no.t be subject to any
period of limitation."
B
30. On a perusal of the said Article, it is quite vivid that an
application for execution of a decree (other than a decree
C
granting a mandatory injunction) or order of any civil court is to
be filed within a period of twelve years. In Dr. Chiranji Lal (DJ
by LRs. v. Hari Das (DJ By LRs. 10, the question arqse whether
a final decree becomes enforceable only when it is engrossed
on the stamp paper. The three-Judge Bench dealing with the
controversy has opined that Article 136 of the Limitation Act
D
presupposes two conditions for the execution of the decree;
firstly, the judgment has to be converted into a decree and
secondly, the decree should be enforceable. The submission
that the period of limitation begins to run from the date when
E
the decree becomes enforceable, i.e., when the decree is
engrossed on the stamp paper, is unacceptable. The Bench,
while elaborating the said facet, proceeded to lay down as
under: -
"24. A decree in a suit for partition declares the rights of
F
the parties in the immovable properties and divides the
shares by metes and bounds. Since a decree in a suit for
partition creates rights and liabilities of the parties with
respect to the immovable properties, it is considered as
an instrument liable for the payment of stamp duty under
G
the Indian Stamp Act. The object of the Stamp Act being
securing the revenue for the State, the scheme of the
Stamp Act provides that a decree of partition not duly
stamped can be impounded and once the requisite stamp
10. c2005) 10 sec 746.
H
A
B
c
D
E
F
G
H
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SUPREME COURT REPORTS
[2012] 2 S.C.R.
duty along with penalty, if any, is paid the decree can be
acted upon.
25. The engrossment of the final decree in a suit for
partition would relate back to the date of the decree. The
beginning of the period of limitation for executing such a
decree cannot be made to depend upon date of the
engrossment of such a decree on the stamp paper. The
date of furnishing of stamp paper is an uncertain act, within
the domain, purview and control of a party. No date or
period is fixed for furnishing stamp papers. No rule has
been shown to us requiring the court to call upon or give
any time for furnishing of stamp paper. A party by his own
act of not furnishing stamp paper cannot stop the running
of period of limitation. None can take advantage of his own
wrong. The proposition that period of limitation would
remain suspended till stamp paper i~ furnished and decree
engrossed thereupon and only thereafter the period of
twelve years will begin to run would lead to absurdity.
· In Yeshwant Deorao Deshmukh v. Walchand Ramchand
. Kothari [1950 SCR 852: AIR 1951 SC 16] it was said that
the payment of court fee on the amount found due was
entirely in the power of the decree holder and there was
.nothing to prevent him from paying it then and there; it was
a deeree capable of execution from the very date it was
passed.
26. Rules of limitation are meant to see that parties do not
resort to dilatory tactics, but seek their remedy promptly.
As above noted, there is no statutory provision prescribing
a time limit for furnishing of the stamp paper for engrossing
the decree or time limit for engrossment of the decree on
stamp paper and there is no statutory obligation on the
Court passing the decree to direct the parties to furnish
the stamp paper for engrossing the decree. In the present
case the Court has not passed an order directing the
parties to furnish the stamp papers for the purpose of
BIMAL KUMAR & ANR. v. SHAKUNTALA DEBI &
215
ORS. [DIPAK MISRA. J.]
engrossing the decree. Merely because there is no
A
direction by. the Court to furnish the stamp papers for
engrossing of the decree or there is no time limit fixed by
law, does not mean that the party can furnish stamp papers
at its sweet will and claim that the period of limitation
provided under Article 136 of the Act would start only
B
thereafter as and when the decree is engrossed
thereupon. The starting of period of limitation for execution
of a partition decree cannot be made contingent upon the
engrossment of the decree on the stamp paper."
31. In Ram Bachan Rai and others v. Ram Udar Rai and
C
others11, a contention was advanced to the effect that as the
cost for enforcement of decree was not quantified, the period
of limitation could not have commenced from the date of
judgment and decree. The Court referred to the decision in Dr.
Chiranji Lal (~upra) and, after referring to paragraphs 24 and
D
25 of the said decision, expressed the view in unequivocal
terms that the inevitable conclusion was that the suit was barred
by limitation.
32. In the present case, the learned counsel for the
E
respondents, in support of the order passed in Civil Revision,
has canvassed that when a suit was filed for declaring the earlier
compromise decree to have been obtained by fraud and the
same remained pending for more than 21 years, the period of
limitation commenced only after the suit and the appeal arising
F
therefrom were dismissed since only on the conclusion of the
said proceeding, the decree became enforceable and further,
the time consumed in the said proceeding is to be excluded
· for computation of the period of limitation under Article 136 of
the Limitation Act. We have already held that the decree was
G
a final decree. Therefore, it was imme~iately executable. The
question, thus, would be 'was the time arrested?' On a query
being made, it was fairly conceded at the Bar that at no point
of time, there was any order by any court directing stay of
11.