A MANJUNDAPPA Vs. SONNAPPA

JUDGEMENT

(1.) This Civil Revision Petition, raises an interesting question under Order XX, Rule 18(1) of the Code of Civil Procedure under the following circumstances :--The petitioner instituted O.S. 133/49-50 against the respondents for partition and possession of his share of the joint family property. A preliminary decree came to be passed in his favour on 22nd January 1951. It reads as follows :--

(2.) I have quoted the terms of the preliminary decree in full and it is obvious that it does not contain any directions for transfer of the record and the proceedings to the Deputy Commissioner for effecting a division under S. 54 of the Code Order XX, Rule 18 which deals with the form of decree in a suit for partition of the property, lays down:-

(3.) The next contention advanced on behalf of the respondents is that the petition filed in 1959 for transmission of the record and proceedings to the Deputy Commissioner is barred by limitation. There is no force in this contention. It must be observed that such a petition is not a petition for execution of a decree because there is no executable decree. It is a petition in a pending suit praying the Court to take the necessary steps for drawing up of a final decree after effecting a division in terms of the preliminary decree. The duty of drawing a final decree is that of the court and neither the Code of Civil Procedure nor the Limitation Act specifically provides for any application being made for drawing up a final decree. As was observed by a Division Bench of this Court in Narasu Bin Ningappa v. Narayan Krishnaji, 37 Mys. LJ 103 : (AIR 1959 Mys 233)