V.M. Pancholi JUDGMENT
V.M. Pancholi, J.
1. This appeal is filed under Clause 15 of the Letters Patent by the appellants-original respondents No. 3.1, 3.2 and 3.3 against an oral order dated 28.6.2017 passed by the learned Single Judge in Special Civil Application No. 299 of 2017, by which the learned Single Judge has allowed the petition filed by the present respondent No. 3, 4.1 to 4.7 and respondent No. 5.1 to 5.6-original petitioners.
2. The factual matrix of the present case are as under:
2.1 The original petitioner filed the captioned petition, in which it has been stated that grandfather of the petitioners namely Koli Nathubhai Kalabhai Rathod passed away on 16.2.1946. He had four sons namely Jivabhai Nathubhai, Rambhai Nathubhai, Meghabhai Nathubhai and Bavbhai Nathubhai. Prior to death of Nathubhai, his eldest son namely Jivabhai died on 14.12.1939 leaving behind him his heirs. Out of the remaining three sons of deceased Nathubhai, two sons had no issue.
2.2 It is stated that legal heirs of deceased Jivabhai and Bai Mongi, the widow of Kalabhai Jivabhai filed Regular Civil Suit No. 65 of 1967 in the court of Principal Civil Judge, Rajula against Koli Bhavbhai Rathod for declaration, permanent injunction, partition, mesne profit and separate possession of other 1/2 share from the various parcels of agricultural land, the details of which are given in the memo of the petition. It is further stated that in the said proceedings, three different houses were also subject matter of the said suit.
2.3 It is stated that the concerned civil court passed a preliminary decree of partition on 31.7.1968 and the defendant of the said suit challenged that said preliminary decree by preferring Regular Civil Appeal No. 59 of 1968 before the District Court. The said appeal came to be dismissed by the appellate court by an order dated 30.6.1969. Against the said order, Second Appeal No. 703 of 1969 was preferred before this Court and this Court dismissed the second appeal vide order dated 4.12.1973. The petitioners, thereafter, requested to execute preliminary decree and therefore the Civil Judge (J.D.), Rajula appointed one advocate as Court Commissioner to effect the partition. The said Commissioner thereafter retired as Court Commissioner and therefore the concerned Court appointed Shri P.D. Ghanchi as Court Commissioner to effect the actual partition of the property in question. Thereafter, the said Court Commissioner has also declined to proceed further as Court Commissioner. Ultimately, the concerned Court passed a final decree dated 30.12.1978.
2.4 The petitioners have further stated in the petition that after the judgment and decree dated 30.12.1978 has attained finality, Koli Bhagvanbhai Bavbhai the son of the original defendant filed Regular Civil Suit No. 15 of 1980 in the Court of learned Civil Judge (J.D.), Rajula against Koli Kanji Ramshi, Koli Nanji Ramshi, Koli Bai Rakhmani Ramshi and others for declaration and permanent injunction. It was alleged in the said suit that Koli Nathu Kala had executed a Will of his immovable properties on 20.6.1932 in favour of Koli Bav Nathu and Megha Nathu and therefore decree dated 31.7.1968 obtained by the defendants was by suppressing the factum of Will executed by Nathu Kala on 30.6.1932. It is further stated that initially ex-parte stay against execution of the decree was granted and the stay was confirmed thereafter. It is stated that ultimately the concerned civil Court dismissed the suit on 30.11.1983, against which Regular Civil Appeal No. 65 of 1985 came to be filed before the District Court. During the pendency of the said appeal, original appellant Koli Bhagvanbhai Bavbhai Rathod passed away on 13.5.2001 and therefore the appeal was dismissed by an order dated 18.7.2003 having been abated.
2.5 The petitioners have thereafter stated that they applied before the respondent-Mamlatdar on 4.4.2016, 12.5.2016 and 4.7.2016 and requested to do the needful in compliance of the decree dated 30.12.1978 passed by the concerned Civil Court. However, the respondent-Mamlatdar filed/did not entertain an application submitted by the petitioner by communication dated 30.9.2016. The petitioners, therefore, filed the captioned petition in which the petitioner prayed for the following reliefs:
"12(A) YOUR LORDSHIPS may be pleased to admit this Special Civil Application;
(B) YOUR LORDSHIPS may further be pleased to issue a writ of certiorari or any other appropriate writ, Order or direction in the nature of certiorari quashing and setting aside the impugned Communication dated 30/09/2016 [ANNEXURE "D"] being ex-facie illegal, arbitrary de hors the letters of the decree dated 30/12/78 passed by the competent Civil Court, Rajula in Regular Civil Suit No. 65 of 1967 and perverse in the facts and circumstances of the case and in the interest of justice;
(C) Pending admission, hearing and final disposal of the present petition YOUR LORDSHIPS may be pleased to direct the respondent No. 1 & 2 to take immediate steps to see to it that in compliance of the decree dated 30/12/78 passed by the competent Civil Court, Rajula, in Regular Civil Suit No. 65 of 1967 [ANNEXURE "A"] the petitioners are put in separate possession of the 1/2 agricultural lands from khata No. 161 admeasuring 24 Acres and 07 Gunthas of village Jafrabad to meet with the ends of justice;
(D) YOUR LORDSHIPS may be pleased to restrain the private respondents from entering into the agricultural lands situated in the sim of Village: Jafrabad, District : Amreli bearing Survey No. 65/1 admeasuring 3 Acres 3 Gunthas and the land Survey No. 182/1 admeasuring 6 Acres 37 Gunthas and also the land Survey No. 143/1 admeasuring 2 Acres 8 Gunthas and in total 12 Acres and 8 Gunthas to meet with the ends of justice;
(E) Any other and further relief as thought fit may kindly be granted."
2.6 The learned Single Judge, by the impugned order dated 28.6.2017, disposed off the petition by observing that when a civil Court passes a decree of partition of an agricultural land, it is for the Collector to give effect to the same by carrying out all the necessary measure and dividing the land in metes and bounds. It is also observed that if the private respondents have any objection in this regard, it shall be open for them to raise it before the Collector and the Collector was directed to undertake the exercise and to complete the same within the stipulated time limit. The appellants-original private respondents have therefore preferred the present appeal.
3. Heard learned advocate Mr. Hriday Buch assisted by learned advocate Ms. Mittal Patel for the appellants-original private respondents, learned Assistant Government Pleader Mr. Antani for respondent Nos. 1 and 2 and learned advocate Mr. Kanabar for respondent Nos. 5.1 to 5.6-original petitioners.
3.1 Learned advocate Mr. Buch contended that when the concerned Civil Court has passed a final decree on 30.12.1978, the original petitioners ought to have filed the execution proceedings within a period of 12 years from the date of the final decree passed by the concerned Court. It is submitted that there was no stay granted by any Court against the final decree dated 30.12.1978 passed by the concerned Civil Court. It is pointed out that even the proceedings initiated by Koli Bhagvanbhai Bhavbhai by filing Regular Civil Suit No. 15 of 1980 were also concluded in the year 2003 as the appeal came to be abated when the original appellant Koli Bhagvanbhai Bavbhai passed away on 13.5.2001. It is contended that there is no explanation given by the original petitioners for not filing execution proceedings within the period of limitation. It is, therefore, submitted that the impugned order passed by the learned Single Judge be set aside.
3.2 Learned advocate Mr. Buch thereafter would submit that when the final decree came to be passed in partition suit by the civil Court, execution proceedings is required to be filed within 12 years for execution of the said decree as per Article 136 of the Limitation Act, 1963. The petitioners have never filed the execution proceedings before the competent Court instead submitted an application to the Mamlatdar for the first time in the year 2016 for partition of the suit property as per the final decree passed by the concerned Court. Thus, the application submitted by the petitioners is time barred and Mamlatdar is not having any authority to execute the decree and therefore no error can be found with the order dated 30.9.2016 passed by the Mamlatdar to whom the application is submitted by the petitioners. It is, therefore, urged that the order passed by the learned Single Judge be set aside.
3.3 Learned advocate Mr. Buch thereafter contended that the reliance placed by learned advocate for the original petitioners on provisions contained in Section 54 and Order XX Rule 18 of the Civil Procedure Code, 1908 (`CPC' for short) is misconceived. It is contended that the Collector is not empowered to execute the final decree passed in the suit for partition when the suit property consists of agricultural and non-agricultural land. It is, therefore, submitted that the direction issued by the learned Single Judge to the Collector to give effect to the decree of partition as per the order passed by the civil Court is not correct and therefore the impugned order passed by the learned Single Judge be set aside.
3.4 In support of the aforesaid contentions, learned advocate Mr. Buch has placed reliance upon the following decisions:
(1) Bimal Kumar and Another Vs. Shakuntala Debi and Others, reported in MANU/SC/0156/2012 : (2012) 3 SCC 548.
(2) Balwant Singh (Dead) Vs. Jagdish Singh and Ors., reported in MANU/SC/0487/2010 : AIR 2010 SC 3043.
(3) T. Ravi and another Vs. B. Chinna Narasimha and others, reported in MANU/SC/0279/2017 : (2017) 7 SCC 342.
4. On the other hand, learned advocate Mr. Kanabar appearing for the present private respondents-original petitioners has mainly contended that the learned Single Judge has not committed any error while giving direction to the Collector to execute the decree as per the order passed by the concerned Civil Court. Learned advocate Mr. Kanabar has placed reliance upon the provisions contained in Section 54 and Order XX Rule 18(1) of CPC. Relying upon the said provision, it is contended that when the decree is passed by the civil Court with regard to the agricultural land declaring rights of several parties interested in the suit property, a direction can be given to the Collector to effect actual partition or separation in accordance with the declaration made by the Court regarding the shares of various parties. It is submitted that the preliminary decree was passed by the concerned civil Court directing the Collector to partition the property. However, no action was taken by the Collector and therefore the petitioners have submitted an application in the year 2016 to the Mamlatdar for giving effect to the decree passed by the civil Court. However, request of the original petitioners is not entertained and therefore the learned Single Judge has rightly given direction to the Collector to do the needful for execution of the decree. Hence, no error is committed by the learned Single Judge.
5. Learned advocate Mr. Kanabar thereafter submits that the period of limitation prescribed under Article 136 of the Limitation Act would not be applicable in the facts of the present case. It is submitted that when the application under Section 54 of CPC praying for partition of the land by Collector as required by the terms of the preliminary decree passed by the Court is submitted, Articles 136 and 137 of the Limitation Act, 1963 would not be attracted. It is further contended that though the decree is passed by the concerned Court in the year 1978, till date the original petitioners have not got any benefits of the said decree and therefore in the facts of the present case, learned Single Judge has not committed any error in passing the impugned order. Learned advocate, therefore, urged that the present appeal is devoid of merits and therefore the same be dismissed.
6. Learned advocate Mr. Kanabar has placed reliance on the following decisions:
(1) Shub Karan Bubna alias Shub Karan Prasad Bubna vs. Sita Saran Bubna and others, reported in MANU/SC/1607/2009 : (2009) 9 SCC 689.
(2) Bikoba Deora Gaikwad and others vs. Hirabhai Marutirao Ghorgare and others, reported in MANU/SC/2540/2008 : (2008) 8 SCC 198.
(3) Chintaman Vs. Shankar and others, reported in (1999) 1 SCC 76.
(4) Srihari (Dead) through Legal representative Ch. Niveditha Reddy Vs. Syed Maqdoom Shah and others, reported in MANU/SC/0818/2014 : (2015) 1 SCC 607.
(5) Decision rendered by the learned Single Judge of this Court in the case of Ragha @ Rugnath Mahadev Vs. Ramji Bava, reported in MANU/GJ/0064/1974 : 1973 GLR 577.
(6) Venu Vs. Ponnusamy Reddiar (Dead) Thr.Lrs. and another, reported in MANU/SC/0569/2017 : AIR 2017 SC 2447.
7. Having heard learned counsel appearing for the parties and having gone through the material produced on record and the decisions on which the reliance is placed by the learned advocates for the parties, it emerges that the original petitioners filed Regular Civil Suit No. 85 of 1968 in the court of Principal Civil Judge, Rajula for declaration, permanent injunction, partition and separate possession of their shares in the suit property which includes agricultural land as well as three different houses. The concerned civil Court passed a preliminary decree on 19.7.1968 against which the original defendants preferred Regular Civil Appeal which came to be dismissed against which second appeal came to be filed before this Court which was also dismissed on 4.12.2013. Thereafter, the concerned Civil Court passed a final decree on 30.12.1978. A copy of the said decree is produced at Annexure `A' with the compilation. It is not in dispute that the judgment and final decree dated 30.12.1978 has attained finality. The original plaintiffs-petitioners did not initiate any execution proceedings before the competent Court. On the basis of the final decree of 1978, for the first time, the application came to be submitted before the Mamlatdar in the year 2016 with a request to execute the decree and do the needful as per the final decree passed by the civil Court. Thereafter, the other two applications were also submitted to the respondent Mamlatdar. After considering the objections raised by the original respondents-present appellants filed/did not entertain the applications submitted by the original petitioners.
8. At this stage, we would like to refer to relevant provisions of the CPC as well as the Limitation Act, 1963.
Section 54 of CPC reads as under:
"54. Partition of estate or separation of share:- Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separation 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 subordinate 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 estates."
Order XX Rule 18 reads as under:
"18. 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."
9. It is contended by learned advocate Mr. Kanabar appearing for the original petitioners relying upon the provisions contained in CPC that the decree passed by the civil Court in a suit for partition with regard to the agricultural land be executed by the Collector, when the application was filed by petitioners to the Mamlatdar for further execution of the said decree, no period of limitation would be applicable. Whereas learned advocate Mr. Buch appearing for the original respondents-appellants has mainly urged that once the final decree is passed by the competent civil Court in the year 1978, as per the provisions contained in Article 136 of the Limitation Act, execution proceedings are required to be filed within a period of 12 years. In the present case, the application is submitted by the original petitioners to the Mamlatdar after a period of 39 years and for that there is no reasonable explanation given by the original petitioners for submitting application before the Mamlatdar after such a gross delay.
10. In the case of Shub Karan Bubna alias Shub Karan Prasad Bubna (supra), the Hon'ble Supreme Court, after referring to the provisions of the CPC, observed in paragraphs 14 to 18.3 as under:
"14. The Third Division of the Schedule to the said Act prescribes the periods of limitation for Applications. The Schedule does not contain any Article prescribing the limitation for an application for drawing up of a final decree. Article 136 prescribes the limitation for execution of any decree or order of civil court as 12 years when the decree or order becomes enforceable. Article 137 provides that for any other application for which no period of limitation is provided elsewhere in that division, the period of limitation is three years which would begin to run from the time when the right to apply accrues.
15. It is thus clear that every application which seeks to enforce a right or seeks a remedy or relief on the basis of any cause of action in a civil court, unless otherwise provided, will be subject to the law of limitation. But where an application does not invoke the jurisdiction of the court to grant any fresh relief based on a new cause of action, but merely reminds or requests the court to do its duty by completing the remaining part of the pending suit, there is no question of any limitation. Such an application in a suit which is already pending, which contains no fresh or new prayer for relief is not one to which the Limitation Act, 1963 would apply.
16. These principles are evident from the provisions of the Code and the Limitation Act and also settled by a series of judgments of different High Court over the decades (See : for example, Lalta Prasad vs. Brahma Din, Ramabai Govind v. Anant Daji, Abdul Kareem Sab vs. Gowlivada S. Silar Saheb, A. Manjundappa v. Sonnappa & Ors., Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors., Laxmi v. A. Sankappa Alwa. We may also draw support from the judgments of this Court in Phoolchand vs. Gopal Lal, Hasham Abbas Sayyad v. Usman Abbas Sayyad & Ors. and Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare.
17. Once a court passes a preliminary decree, it is the duty of the court to ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree as to the manner of division. This duty in the normal course has to be performed by the court itself as a continuation of the preliminary decree. Sometimes either on account of the pendency of an appeal or other circumstances, the court passes the decree under Rule 18(1) or a preliminary decree under Rule 18(2) and the matter goes into storage to be revived only when an application is made by any of the parties, drawing its attention to the pending issue and the need for referring the matter either to the Collector or a Commissioner for actual division of the property. Be that as it may.
18. The following principles emerge from the above discussion regarding partition suits:
18.1. In regard to estates assessed to payment of revenue to the government (agricultural land), the court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the court in regard to the shares of various parties and deliver the respective portions to them, in accordance with section 54 of Code. Such entrustment to the Collector under law was for two reasons. First is that Revenue Authorities are more conversant with matters relating to agricultural lands. Second is to safeguard the interests of government in regard to revenue. (The second reason, which was very important in the 19th century and early 20th century when the Code was made, has now virtually lost its relevance, as revenue from agricultural lands is negligible). Where the Collector acts in terms of the decree, the matter does not come back to the court at all. The court will not interfere with the partitions by the Collector, except to the extent of any complaint of a third party affected thereby.
18.2. In regard to immovable properties (other than agricultural lands paying land revenue), that is buildings, plots etc. or movable properties:
(i) where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will pass a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds.
(ii) where the division by metes and bounds cannot be made without further inquiry, the court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally a Commissioner is appointed (usually an Engineer, Draughtsman, Architect, or Lawyer) to physically examine the property to be divided and suggest the manner of division. The court then hears the parties on the report, and passes a final decree for division by metes and bounds.
The function of making a partition or separation according to the rights declared by the preliminary decree, (in regard to non-agricultural immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared.
18.3. As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is division by metes and bounds, takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act). It is only a reminder to the court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion."
11. In the case of Bikoba Deora Gaiwad and Others (supra), the Hon'ble Supreme Court has held and observed in paragraphs 13 and 16 as under:
"13. A bare perusal of Section 54 read with Order 20 Rule 18 of the Code leaves no manner of doubt that the application filed before the Court to send decree and papers to the Collector to carry out partition was not and could not have been an application in execution. If it was not an application for execution, the question of the application of the provisions of the Limitation Act would not apply.
16. Article 136 would apply when an application for execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court is to be filed. An application for taking steps towards passing a final decree is not an execution application. The said provision, therefore, cannot have any application in respect thereof."
12. In the case of Chintaman (supra), the Hon'ble Supreme Court has observed in paragraph 9 as under:
"9. Now it is obvious that once the partition decree has been passed as per Order 20 Rule 18, Section 54 of the CPC directly gets attracted and when the grievance of the appellant was found well established on record by the trial court that the Collector had not put the appellant in possession of his share of the property and only the plaintiff's 2/3rds share was carved out and put in possession of the plaintiff, it is obvious that the applicant's application was a sort of a reminder to the trial court to direct the Collector to complete his work under Section 54 as per the final decree. It was, strictly speaking, not an application under Order 21 Rule 35. To that extent, the learned Judge of the High Court was right. But that is not the end of the matter. Further question remains as to whether the ultimate order of the trial court was justified on facts or not. It is found as a fact that the appellant was actually not put in possession of his 6 acres 20 gunthas decreed to him as early as in 1968 and that finding was never challenged before the High Court by the appellant. In the light of this well-established factual position on record, it must be held that despite the decree of 1968 decreeing 6 acres 20 gunthas of land in favour of the appellant and the direction contained in the decree itself as per Order 20 Rule 18 calling upon the Collector to effect partition of the landed property as mentioned in the first part of para 6 of the decree, it was not complied with by the Collector. The trial court was, therefore, perfectly justified in issuing further direction to the Collector for completing the task which unfortunately has remained incomplete for 30 years by now. Under these circumstances, there is no escape from the conclusion that the appellant must be permitted to be put in possession of the land which was already decreed in his favour years back in 1968 by the civil court and which decree, we are told, has become final as no higher court has upset that decree. Consequently, this appeal is allowed. The judgment and order of the learned Single Judge of the High Court are set aside and the order passed by the learned trial Judge is restored. No order as to costs."
13. In the case of Bimal Kumar and another (supra), the Hon'ble Supreme Court has held in paragraphs 25, 32, 34, 40 and 44 as under:
"25. In the said case, after referring to Civil Procedure Code by Mulla, this Court in Renu Devi case, 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 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 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 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.
32. 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. It has been so held in Rachakonda Venkat Rao v. R. Satya Bai. It is worth noting 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 others.
34. 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.
40. We have already held that the decree was a final decree. Therefore, it was immediately 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 operation of the judgment and decree passed in P.S. No. 131 of 1962. The question that emanates for consideration is whether the period during which the suit and appeal preferred by the appellants remained pending is to be excluded for the purpose of limitation.
44. In the case at hand, the compromise decree had the status of a final decree. The latter suit filed by the appellants was for partition and declaring the ex-parte compromise decree as null and void. As has already been stated, there was no stay of the earlier judgment or any proceedings emanating therefrom. In the absence of any interdiction from any court, the decree-holder was entitled to execute the decree. It needs no special emphasis to state that 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 barred by limitation."
14. In the case of Balwant Singh (Dead) (supra), the Hon'ble Supreme Court has held in paragraph 13 as under:
"13. As held by this Court in the case of Mithailal Dalsangar Singh (MANU/SC/0722/2003 : AIR 2003 SC 4244 : 2003 AIR SCW 4878) (supra), the abatement results in the denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be construed liberally. We may state that even if the term 'sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of 'reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. The application filed by the applicants lack in details. Even the averments made are not correct and ex facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behavior of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh [MANU/SC/0358/2000 : (2000) 9 SCC 94] : (AIR 2000 SC 2306 : 2000 AIR SCW 2389), this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. In the case of Ramlal and others v. Rewa Coalfields Ltd., [MANU/SC/0042/1961 : AIR 1962 SC 361] this Court took the view:
"7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, MANU/TN/0148/1889 : ILR 13 Mad 269.
It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;..."
15. In the case of T. Ravi (supra), the Hon'ble Supreme Court has held in paragraph 96 as under:
"96. Reliance has been placed on Raghunath Rai Bareja v. Punjab National Bank in which the Latix maxim "dura lex sed lex" which means "the law is hard, but it is the law" was applied. Relying upon that it has been observed that equity can only supplement the law, but it cannot supplant or override it. But when there is a conflict between law and equity, it is the law which has to prevail."
16. In the case of Venu (supra), the Hon'ble Supreme Court has held in paragraph 4 as under:
"4. In our opinion a preliminary decree for partition crystallizes the rights of parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings. Till partition is carried out and final decree is passed, there is no question of any limitation running against right to claim partition as per preliminary decree. Even when application is filed seeking appointment of Commissioner, no limitation is prescribed for this purpose, as such, it would not be barred by limitation, lis continues till preliminary decree culminates in to final decree."
17. If the aforesaid decisions are carefully examined, it is revealed that as the declaration of rights or shares is only the first stage in a suit for partition, the preliminary decree does not have the effect of disposing off the suit. The suit continues to be pending until partition i.e. division by metes and bounds, takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of preliminary decree is neither an application for execution nor an application seeking a fresh relief. An application for taking steps towards passing a final decree is not an execution application. With regard to immovable properties i.e. building, plot etc., or movable properties where the division by metes and bounds cannot be made without further inquiry, the Court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally Commissioner is appointed and after getting the report, Court passes the final decree for division by metes and bounds.
18. Further, it is clear that the equity can only supplement the law but it cannot supplant or overwrite it. When there is a conflict between law and equity, it is the law which has to prevail. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. If a party is thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.
19. In the case of Shub Karan Bubna alias Shub Karan Prasad Bubna (supra), the suit was decreed on 25.2.1964 directing a preliminary decree for partition to be drawn in regard to the 1/3rd share of the plaintiffs in the plots and final decree to be drawn up through the appointment of Commissioner for actual division of the plot by metes and bounds. The application was filed on 1.5.1987 for drawing up a final decree and the opposite party filed an application in the year 1991 for dropping the final decree proceedings as it was barred by limitation. Ultimately, the proceedings went up to the Hon'ble Supreme Court. The Hon'ble Supreme Court, after considering the provisions of the CPC and Limitation Act, observed and held that every applicant who seeks to enforce a right or seeks a remedy or relief on the basis of any cause of action in a civil Court, unless otherwise provided, will be subject to the law of limitation. But where an applicant does not invoke the jurisdiction of the Court to grant any fresh relief based on a new cause of action but merely reminds or requests the Court to do its duty by completing the remaining part of the pending suit, there is no question of any limitation. Thus, in the facts of the present case, the aforesaid decision would not render any assistance to the present respondents-original petitioners.
20. Similarly, in the case of Bikoba Deora Gaikwad and others (supra), the question before the Hon'ble Supreme Court was whether an application for initiating final decree proceedings in terms of Section 54 of CPC would be governed by any provision contained in the schedule appended to the Limitation Act, 1963. The Hon'ble Supreme Court held that when an application for initiating final decree proceedings in terms of the aforesaid section is filed, provisions of Articles 136 and 137 of the Limitation Act will have no application. In the present case, as discussed hereinabove, the final decree was already passed on 30.12.1978 and thereafter the application was submitted before the Mamlatdar after a period of more than 39 years and therefore in the facts of the present case, the aforesaid decision would also not render any assistance to the original petitioners. Similarly, reliance placed on the decision rendered by the Hon'ble Supreme Court in the case of Chintaman (supra) is also misconceived.
21. In the facts and circumstances of the present case, as discussed hereinabove, the preliminary decree was passed by the concerned civil Court on 31.7.1968. The said preliminary decree came to challenged by the original defendant by preferring Regular Civil Appeal No. 59 of 1968 before the District Court and the said appeal came to be dismissed by the appellate Court on 30.6.1969 against which the Second Appeal No. 703 of 1969 was preferred before this Court which was also dismissed by this Court by order dated 4.12.1973. Thereafter, the final decree of partition came to be passed on 30.12.1978. At this stage, it is required to be noted that the petitioners thereafter requested the concerned civil Court to execute a preliminary decree and therefore the civil Judge appointed an advocate as Court Commissioner to effect the partition. However, the said Commissioner thereafter retired as Court Commissioner and therefore one Mr. P.D. Ghanchi was appointed as Court Commissioner to effect the actual partition of the property in question. The said Court Commissioner also declined to proceed further as Court Commissioner. Thereafter, the final decree dated 30.12.1978 was passed by the concerned Court. Thus, the decision rendered by the Hon'ble Supreme Court in the case of Venu (supra) would not render any assistance to learned advocate Mr. Kanabar. In the said case, the Hon'ble Supreme Court has held that a preliminary decree for partition crystallizes the rights of the parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings and till partition is carried out and final decree is passed, there is no question of limitation running against right to claim partition as per preliminary decree. No limitation is prescribed for this purpose and therefore it would not be barred by limitation. However, as observed hereinabove, in the present case, the final decree was passed on 30.12.1978 and till date, no execution proceedings are filed by the petitioners before the competent civil Court. Instead, the petitioners have submitted an application before the Mamlatdar for execution of the said decree. In our view, the said application itself is misconceived. We are of the view that once the final decree is passed by the competent civil Court which has attained finality, the petitioners have to approach before the competent civil Court for execution of the said final decree within the prescribed period of limitation. The Collector is not empowered to execute the final decree and therefore the submissions canvassed by learned advocate Mr. Kanabar is misconceived.
22. In the present case, as observed hereinabove, the suit for partition was filed by the petitioners with regard to agricultural land as well as for three houses situated at Jafrabad, the description of which is given in the final decree produced at page 29-A of the compilation. In view of the above, no direction can be given to the Collector to execute a final decree passed by the civil Court and that too after a period of more than 39 years. The petitioners have not tendered any explanation for not filing execution application before the competent civil Court or for not submitting the application before the Mamlatdar within reasonable time. At this belated stage, after a period of 39 years, the application is filed before the Mamlatdar for execution of the final decree passed by the competent civil Court.
23. In view of the foregoing discussion, this appeal is allowed. The order dated 28.6.2017 passed by the learned Single Judge in Special Civil Application No. 299 of 2017 is set aside. Consequently, Civil Application stands disposed off.
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