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Koli Jitubhai Jagubhai Rathod Vs. Koli Kanjibhai Ramshibhai Rathod and Ors. - (High Court of Gujarat) (28 Dec 2017)

When there is a conflict between law and equity, it is the law which has to prevail



Instant appeal is filed by the Appellants-original Respondents against an oral order passed by the learned Single Judge in Special Civil Application, by which the learned Single Judge has allowed the petition filed by the present Respondent and Respondent-original Petitioners. The learned Single Judge, by the impugned order, 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.

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.

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.

In the present case, the final decree was passed on 30th December, 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. The said application itself is misconceived. 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.

In the present case, the suit for partition was filed by the Petitioners with regard to agricultural land as well as for three houses situated at Jafrabad. 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. The impugned order is set aside. Appeal allowed.


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