SHANKAR BALWANT LOKHANDE DEAD Vs. CHANDRAKANT SHANKAR LOKHANDE

JUDGEMENT

(1.) These appeals by special leave arise from the judgment of the High Court of Bombay dated April 7,1977 by which LPA 15/77 was dismissed in limine. The facts lie in a short compass for deciding the question of law arising in these appeals. On August 2, 1955, a preliminary decree in Spl. Civil Suit No. 296/49 was passed declaring that Chandrakant-first respondent was entitled to 1/6th share and the appellants were entitled to 5/6th share in the suit properties. An order was made on April 19, 1958 directing preparation of a final decree. On December 19, 1960, first respondent supplied non-judicial stamps to engross and sign the final decree to the extent of his 1/6th share. On 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 the other hand, Darkhast No. 41/63 was filed by them for execution of the preliminary decree which was subsequently dismissed as withdrawn. Darkhast No. 70 was filed in 1965 which was dismissed on March 13, 1968 as the application was barred by limitation. In First Appeal No. 605/68, the High Court held that "in view of the fact that no final decree was passed on non-judicial stamps, there was no decree in existence for its execution". Therefore, on August 12, 1975, the appeal was dismissed. On August 14, 1975, the appellants filed Misc. Application No. 538/75 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 on 3-2-76 holding that the application was not barred by limitation. In First Appeal No. 229/76, learned single Judge of the High Court held that the limitation began to run from the date when the direction was given to pass final decree. Since the application was filed after the expiry of period of limitation counted from that date, the Court held on March 7, 1977 that it was barred by limitation. As stated earlier, on further appeal, the division bench dismissed the appeal in limine.

(2.) The crucial question for consideration is as to when the limitation begins to run for filing an application to pass final decree on stamped papers. There is no direct decision of this Court on this point. Therefore, after hearing counsel at length, we reserved the judgment in the appeal and independently made detailed examination. There is divergence of opinion in the High Court on this question.

(3.) Order 20 Rule 7 of CPC envisages that the decree "shall bear the day on which the judgment was pronounced, and, when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree". Section 2(2) of CPC defines "decree" to mean "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 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 fully determined and a decree is passed in accordance with such determination which is final. Both the decrees are in the same suit. Final decree may be said to become final in two ways:(i) when the time for appeal has expired without any appeal being filed against the preliminary decree or the matter has been decided by the highest Court; (ii) when, as regards the Court passing the decree, the same stands completely disposed of. It is in the latter sense the word "decree" is used in S. 2(2) of CPC. The appealability of the decree will, therefore, not affect its character as a final decree. The final decree merely carries into fulfilment the preliminary decree.