[Case-Brief] Shankar Balwant Lokhande v/s Chandrakant Shankar Lokhande & Others, 1995

A preliminary decree is the one which declares the rights and liabilities of the parties leaving the actual results to be worked out in further proceedings. Then, as a result of the further proceedings conducted pursuant to the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is final.

Brief Facts and Procedural History:

  • August 2, 1955- A preliminary decree in Special Civil Suit was passed declaring that Chandrakant-the first respondent was entitled to 1/6th share and the appellants were entitled to 5/6th share in the suit properties.
  • April 19, 1958- An order was made directing the preparation of final decree.
  • December 19, 1960- The first respondent supplied non-judicial stamps to engross and sign the final decree to the extent of his 1/6th
  • January 11, 1961- A final decree in that behalf was engrossed on the stamped paper and signed by the trial court. Since the appellants had not supplied the non-judicial stamps, no final decree was made qua them.
  • On August 14, 1975- the appellants filed Miscellaneous Application before the trial court to accept the non-judicial stamps and to pass a final decree. The said application was contested by the respondent pleading bar of limitation.

The trial court overruled the objection and allowed the application. In the first appeal, the learned single judge of the High Court held that the limitation began to run from the date when the direction was given to pass the final decree. Since the application was filed after the expiry of the period of limitation counted from that date, the court held that it was barred by limitation. Then an appeal was filed before the Division Bench of High Court which dismissed the appeal. The present appeal is by special leave filed before the Supreme Court against the order of the division bench of the High Court.

The issue before the Supreme Court:

  • When does the limitation period begin to run for filing an application to pass a final decree on stamped papers?

The ratio of the Court:

The decree, as per section 2(2) of CPC, 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 matters in controversy in the suit and may be either preliminary or final”. A preliminary decree is the one which declares the rights and liabilities of the parties leaving the actual results to be worked out in further proceedings. Then, as a result of the further proceedings conducted pursuant to the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is final. The appealability of the decree will, therefore, not affect its character as a final decree. The final decree merely carries into the fulfillment of the preliminary decree.

A preliminary decree in a partition suit is a step in the suit which continues until the final decree is passed. In a suit for partition by a coparcener or a co-sharer, the court should not give a decree only for the plaintiffs share, it should consider shares of all the heirs after making them parties and then pass a preliminary decree. Therefore, the preliminary decree for partition is only a declaration of the rights of the parties and the shares they have in the joint family or coparcenary property, which is the subject-matter of the suit. The final decree should specify the division by metes and bounds and it needs to be engrossed on stamped paper.

Since the decree is one which is prior to the Limitation Act, 1963, one has to look to the provisions contained in the limitation act, 1908 for deciding the controversy. By reading the provisions of Article 182 of the first schedule to the old Act, it would be clear that where a decree or order has been passed jointly against more persons than one, the application shall take effect against all of them, even if it is made by one or more. With passing of the final decree in respect of the share of the first respondent, the rights of the parties in respect of other properties have not been crystallised and no final decree dividing the properties by metes and bounds was passed nor any application was made to divide the properties in terms of the shares of the parties declared in the preliminary decree. The final decree passed in favor of the respondent is only partial to the extent of his 1/6th right without any demarcation or division of the properties. Thus no final decree has been passed relating to all.

The process under Order 20 Rule 18(2) is to draw up a final decree and then to engross it on stamped papers of required value. These two acts thus constitute final decree, crystallizing the rights of the parties in terms of the preliminary decree. Till then there is no executable decree.

Decision Held:

The appeal was allowed. The trial court was directed to pass the final decree first and then to engross the same on the stamped papers already supplied by the appellants. The final decree would then be drawn thereupon which would be executed in accordance with the law

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