Crux:
The Hon’ble Supreme Court stated that the limitation of time for filing the appeal stands after the final decree has been passed by the Court and not from when the Court engrosses the final decree on the stamp and signs it.
Bench:
Ramaswamy. K, Hansaria B.L (J)
Petitioner:
Shankar Balwant Lokhande
Respondent:
Chandrakant Balwant Lokhande
Issues
When does the limitation begin to run for filing an application to pass the final decree on a stamped paper?
Facts
- In a preliminary decree passed by the Spl. Civil Suit the Respondent was entitled to 1/6th share and the Appellant were entitled to a 5/6th share of the suit properties.
- Later the Respondent supplied non-judicial stamps to engross and sign the final decree, the trial court engrossed on the stamped paper and signed. Since the Appellant had not supplied the non-judicial stamps, no decree was made at qua time.
- The Darkhast filed by them was subsequently dismissed as the application was barred by Limitation. In the first appeal, the High Court held that as no decree was passed on non-judicial stamps there was no decree in execution and the appeal was dismissed.
- When the appellant filed for Misc. Application for acceptance of non-judicial stamps and to pass the final decree, the application was contested by the Respondent pleading bar of limitation. The trial court overruled and allowed the application.
- The High Court held that the limitation was when the direction for the final decree was given, and since the application was filed after the expiry of that period, it was barred by limitation and the Court dismissed the appeal.
- Shankar Lokhande filed an appeal in the Supreme Court.
Appellant’s Contentions
- The Appellant contended that under Order 20 Rule 18 of Civil Procedure Code, the decree related to any immovable property and partition cannot be conveniently made without further inquiry and the Court is required to pass a preliminary decree declaring the rights of the parties and the shares they have in the joint family or coparcenary property.
- The final decree should specify the division by metes and bounds and it needs to be engrossed on stamped paper.
- Except for the declaration of the rights of the parties and the charge on the share, there is no final decree. The partition is to be affected by the Commissioner appointed as per the directions of the Court on that behalf, however, no Commissioner was appointed and a final decree had been passed relating to that.
Respondent’s Contentions
- He contended that under Order 20 Rule 7 of the CPC, the judge was satisfied in the trial court and the decree was drawn upon in accordance with the judgement. The decree passed after the inquiries pursuant to the preliminary decree about rights of the parties shall be final, as no appeal was filed before the expiry of the time period.
- As previously stated, no executable final decree has been set up to determine the parties' rights in splitting the properties according to the shares specified in the preliminary decree. The preliminary decision had only declared the parties' shares and that their properties could be partitioned in accordance with those shares by a Com- missioner to be constituted in this matter. To be sure, no Commissioner was appointed, and no definitive decree pertaining to everyone had been issued.
- The facts in Yashwant's case (above) were that a preliminary decree for accounting was issued in an action for rendition of partnership accounts. There was a court charge that had to be paid despite the fact that there was a shortfall It was argued that until the deficit court charge was paid, no right to draw the final decree had accrued, and that as a result, the limitation period began to run only from the date of payment of the deficit court fee.
Relevant paragraphs (3, 10 and 11 of the original judgement)
- The decree "must bear the day on which the judgement was proclaimed, and the judge shall sign the decree when he has satisfied himself that the decree has been put up in compliance with the judgement," according to Order 20 Rule 7 of the CPC.
- The final decree can be said to become final in two ways: (i) when the period for appeal has passed without any appeals being filed against the preliminary decree or the matter has been adjudicated by the highest court; and (ii) when the court that issued the decree is no longer active. In S.2(2) of the CPC, the word "decree" is used in the latter sense. As a result, the decree's appealability will have no bearing on its status as a final decree. The preliminary decree is simply carried out by the final decree.
Final Order
The judgement and order of the High Court were set aside and the trial court stood confirmed. The trial court was directed first to pass the final decree and then to engross the same on the stamped papers already supplied by the Appellants. The final decree was drawn thereon and thereafter, the court would proceed with the execution of the final decree in accordance with the law. The parties were directed to bear their own costs throughout.
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