The Supreme Court of India, in the case of Venu vs Ponnusamy Reddiar, has determined that there is no limitation period for executing a preliminary decree for partition. This ruling stems from a case where an application for execution was filed 30 years after the preliminary decree was passed.
The court reasoned that a preliminary decree establishes the parties' rights to partition, but the actual division happens only after the final decree. Therefore, the right to claim partition as per the preliminary decree isn't subject to any limitation period. The court emphasized that the legal process (lis) continues until the final decree is passed.
The court cited the Kerala High Court's judgment in Laxmi & Ors vs A Sankappa Alwa & Ors, which supports the view that an application for actual partition following a preliminary decree isn't governed by the Limitation Act. This application is considered part of the ongoing suit, making the question of limitation irrelevant.
The Supreme Court's decision also references supporting judgments from the Orissa, Calcutta, Punjab, and Haryana High Courts.
This ruling clarifies that applications for the appointment of a court commissioner to carry out a partition, following a preliminary decree, are not subject to any limitation period. The process remains active until the final decree is achieved.
Lis continues till preliminary decree culminates into final decree, it said.
The Supreme Court, in Venu vs Ponnusamy Reddiar, has held that there is no limitation period for the execution of preliminary decree for partition.
In 1989, an application for execution of the decree was filed after 30 years of the preliminary decree for partition, which was passed in 1959. It prayed for the appointment of a court commissioner so as to carry out the preliminary decree. The high court had rejected the contention that since the application had been filed for the appointment of court commissioner, it ought to be governed by provisions of Article 137 of the Limitation Act 1963.
A bench comprising Justice Arun Mishra and Justice Amitava Roy observed that a preliminary decree for partition crystallises the rights of 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 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,” the bench said.
The court quoted in approval the Kerala High Court judgment in Laxmi & Ors vs A Sankappa Alwa & Ors, wherein it was observed: “When once the rights of the parties have been finally determined in a preliminary decree, an application by a party thereto or the legal representatives, for effecting the actual partition in accordance with the directions contained in the preliminary decree can never be construed to be an application within the meaning of the Limitation Act. It shall be taken to be an application in a pending suit and therefore the question of limitation does not arise.”
Various judgments of Orissa, Calcutta, Punjab and Haryana high courts on the point were quoted in this judgment.
Read the Judgment here.
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