SOME CASE LAWS RELATING TO PARTITION SUIT

1.    In a suit for partition, Civil Court cannot go into the question of title, unless the same is incidental to fundamentals of claim: Trinity Infraventures Ltd. v. M.S. Murthy, 2023 SCC OnLine SC 738, Decided on 15-06-2023]...

2.    The Supreme Court has said in a suit filed for partition, the courts must endeavour to comprehensively adjudicate and decide the right entitlement and share of the parties and must avoid multiplicity of proceedings or relegating parties to a fresh round of litigation. Case Title: VIKRANT KAPILA AND ANOTHER vs. PANKAJA PANDA AND OTHERS CIVIL APPEAL NO. 5355 OF 2023   @ S.L.P.(C) NO. 6793 OF 2023) DT: 10-10-2023

 3. IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3233 OF 2009 [Arising out of SLP©No. 1263 OF 2007] Maddineni Koteswara Rao ..Appellant VERSUS Maddineni Bhaskara Rao & Anr. ..Respondent- It is well settled that a suit for partition stands disposed of only with the passing of the final decree. It is equally settled that in a partition suit, the court has the jurisdiction to amend the shares suitably, even if the preliminary decree has been passed, if some member of the family to whom an allotment was made in the preliminary decree dies thereafter. The share of the deceased would devolve upon other parties to a suit or even a third party, depending upon the nature of the succession or transfer, as the case may be. The validity of such succession, whether testate or intestate, or transfer, can certainly be considered at the stage of final decree proceedings. An inference to this effect can suitably be drawn from the decision of this Court in the case of 9 Phoolchand v Gopal Lal (AIR 1967 SC 1470)-

  4.    Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 The Supreme Court held that a woman/daughter shall also be considered as a joint legal heir as a son and can inherit ancestral property equally as male heir, irrespective that the father was not alive before the Hindu Succession (Amendment) Act, 2005, came into effect. Ancestral property rights to child born out of live-in relationship

  5.    K.C. Laxmana v. K.C. Chandrappa Gowda, 2022 SCC OnLine SC 471 The Supreme Court held that a Hindu father or any other managing member of a Hindu Undivided Family has power to make a gift of ancestral property only for a ‘pious purpose’ and what is understood by the term ‘pious purpose’ is a gift for charitable and/or religious purpose. Therefore, a deed of gift regarding the ancestral property executed ‘out of love and affection’ does not come within the scope of the term ‘pious purpose’.

 6.    Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 SCC OnLine SC 737 The Supreme Court ruled that even children born from a live-in relationship have the coparcenary right to inherit the family’s property. A child who is born to live -in partners living together for an extended period has rights over the ancestral property of his father.

  7. Arunachala Gounder v. Ponnusamy, (2022) 11 SCC 520 The Supreme Court held that the self-acquired property of a Hindu male dying intestate i.e., without writing a will, would devolve by inheritance and not by succession. Further, the Court said that such property shall be inherited by the daughter, in addition to the property of the coparcenary which was obtained through partition. The Court observed that if a woman dies intestate, then any ancestral property passed onto her from her father would be bestowed upon the heirs of her father and similarly the property passed onto her from her husband’s family would be bestowed to her husband’s heir

 8.    Shasidhar & Ors vs Ashwini Uma Mathod & Anr on 13 January, 2015 Equivalent citations: AIR 2015 SUPREME COURT 1139, 2015 AIR SCW 777, 2015 (1) AKR 828, 2015 (11) SCC 269, (2015) 2 ALL WC 1345 24. We may consider it apposite to state being a well settled principle of law that in a suit filed by a co-sharerer, coparcener, co-owner or joint owner, as the case may be, for partition and separate possession of his/her share qua others, it is necessary for the Court to examine, in the first instance, the nature and character of the properties in suit such as who was the original owner of the suit properties, how and by which source he/she acquired such properties, whether it was his/her self-acquired property or ancestral property, or joint property or coparcenery property in his/her hand and, if so, who are/were the coparceners or joint owners with him/her as the case may be. Secondly, how the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect. Thirdly whether the properties in suit are capable of being partitioned effectively and if so, in what manner? Lastly, whether all properties are included in the suit and all co-sharerers, coparceners, co- owners or joint-owners, as the case may be, are made parties to the suit? These issues, being material for proper disposal of the partition suit, have to be answered by the Court on the basis of family tree, inter se relations of family members, evidence adduced and the principles of law applicable to the case. (see "Hindu Law" by Mulla 17th Edition, Chapter XVI Partition and Reunion - Mitakshara Law pages 493-547).

 

9.    CIVIL APPEAL NO(S). 6406-6407 OF 2010; 13th June, 2022 KATTUKANDI EDATHIL KRISHNAN & ANR. versus KATTUKANDI EDATHIL VALSAN & ORS Trial courts should initiate final proceedings suo motu after preliminary decree passed in partition suits: trial courts should not adjourn partition decree matters indefinitely or wait for filing of a separate proceedings towards a final decree, once a preliminary order has been passed,

 

Section 42 (c) of the Indian Partnership Act, 1932[1] implies that subject to the contract to the contrary, a firm is dissolved by the death of a partner. "There cannot be any contract unilaterally without acceptance and agreement by the legal heirs of the deceased partner."

 

A plain reading of Section 42 (c) of the Indian Partnership Act, 1932[1] implies that subject to the contract to the contrary, a firm is dissolved by the death of a partner.

 In case of only 2 partners in the firm, death of a partner results in dissolution even if there is a contract to the contrary. 

The Supreme Court in Mohd. Laiquiddin and Ors. vs. Kamala Devi Misra (Dead) by L.Rs. and Ors., MANU/SC/0031/2010, (2010 ) 2 SCC 407, [2010] 1 SCR 873. observed that when there are only two partners in a firm, on the death of one the firm is deemed to be dissolved despite the existence of any clause which says otherwise. 

A partnership is a contract between the partners; there cannot be any contract unilaterally without acceptance by the other partner. If the legal representatives of the original plaintiff are not interested in continuing the firm or in constituting a new firm, they cannot be asked to continue the partnership. There is no legal obligation on them to do so, as a partnership is not a matter of heritable status, but purely one of contract, which is also clear from the provision of Section 5 of the act.(7) Therefore, the firm dissolved by virtue of the death of one of the partners. 

In the case of Commissioner of I.T v. Seth Govindram Sugar Mills, MANU/SC/0170/1965, It is laid down in this case that in a partnership firm when a deed consisted of a clause that on the death of the one of the partners, heirs of the deceased partner, shall be admitted in the firm in his place, the said clause in the partnership deed can be given effect if the firm consisted of 3 or more partners and not when the firm consists of only 2 partners. 

The same was reiterated in Tirupati Constructions Company vs. Central Bureau of Investigation,  MANU/UP/2236/2018. In case of more than 2 partners, death of a partner results in dissolution of the partnership unless there is a contract to the contrary. It was held in the case of CIT v. K Wadhumal and Sons that, “3. it is settled law that ordinarily on the death of a partner, the partnership firm is automatically dissolved vide section 42 of the Indian Partnership Act. The only exception is where in the partnership deed it is mentioned that on death of a partner the firm will not dissolve. In this case there is nothing to show that there is any mention in the partnership deed that the firm shall not automatically dissolve on the death of a partner.” Ads by  Mohan Lal Jagan Nath & CIT v. Empire Estate[5] “2. …..There was nothing in the partnership deed to the effect that the partnership will continue even after the death of a partner. Hence in view of section 42 of the Partnership Act the firm stood dissolved….  ”

Rights And Duties Of Legal Heirs After Death Of One/Both/All Of The Partners Of The Partnership Firm

Name of the case – S.P. Mishra & Ors. Vs. Mohd. Laiquddin Khan & Anr., C.A. No. 3311 of 2015 (SC) 

Subject and sections involved – Section 42 (C) of the Partnership Act, 1932

Section 42 in The Indian Partnership Act, 1932

42. Dissolution on the happening of certain contingencies.—Subject to contract between the partners a firm is dissolved,—

(a) if constituted for a fixed term, by the expiry of that term;

(b) if constituted to carry out one or more adventures or undertakings, by the completion thereof;

(c) by the death of a partner; and

(d) by the adjudication of a partner as an insolvent.

The fact of the Case: 

All the appellants are legal heirs of late Sri Jai Narayan Misra and all the respondents are legal heirs of late Smt. Hashmatunnisa Begum. During the lifetime of late Sri Jai Narayan Misra and late Smt. Hashmatunnisa Begum, entered into a partnership deed. Late Smt. Hashmatunnis Begum is the owner of open land with structures. Both were successfully carrying on business in real estate by developing the land which forms the part of Paigah Compound. It appears that a major portion of the land is already developed but the dispute is to an extent of 3381 square meters. 

During the lifetime, the predecessor of late Sri Jai Narayan Misra (appellant) has filed a suit to grant a permanent injunction against the defendant restraining the defendant and all the persons claiming through the defendant from preventing the plaintiff from carrying out the work of preparing the layout plan, developing the property and sale thereof, in an extent of 3,381 square meters. And also, to grant a mandatory injunction directing the defendant to sign the layout and other documents submitted to the Cantonment Board for sanction in respect of the land admeasuring 3,381 square meters forming part of Paigah Colony.

Issue:

1. Whether in the event of the death of either or both of the party, their legal representatives shall automatically become partners in the partnership firm and they shall continue to act as partners of the firm till the venture envisaged under partnership?

2. Whether such legal representative shall have the same rights and shall be subject to the same liabilities and responsibilities, as the deceased partner of the partnership firm?

The ratio of the Case: 

The Supreme Court held that the legal representative shall not automatically become the partner in the partnership firm in the event of the death of either or both of the partners. 

It was observed that the executable decree depends on the rights litigated by the parties. In the event of the death of one of the partners, by operation of law, u/s 42 (C) of the Indian Partnership Act, 1932 the partners are not bound by the decree obtained by the predecessor of the partnership. 

Thus, the apex court is of the view that since the respondents were not parties to the partnership deed and that the partnership stands dissolved, in the view of the death of one of the partners, the respondents have not derived the benefits of the assets of the partnership firm, the decree obtained by the predecessor of the appellants, is not executable against the respondents herein. 

Award of Lok Adalat need not be sent for registration.

 

Alla Venkata Krishna Reddy vs Noone Krishna Veni on 11 December, 2015

Author: S.V.Bhatt

Bench: S.V.Bhatt

        

 
THE HON'BLE SRI JUSTICE S.V.BHATT      

CIVIL REVISION PEITTION NO. 4886 OF 2015.     

11-12-2015      

ALLA VENKATA KRISHNA REDDY... PETITIONER.         

NOONE KRISHNA VENI RESPONDENT.           

COUNSEL FOR PETITIONER: MR.M.S.PRASAD.          

COUNSEL FOR RESPONDENTS: MR. KOWTURU PAVAN KUMAR.                  

<GIST 

>HEAD NOTE:    

?CASES REFERRED:      

2013(6) ALD 130 

THE HONBLE SRI JUSTICE S.V. BHATT      

C.R.P.No.4886 OF 2015   
ORDER:

Heard Sri M.S.Prasad, learned Senior Counsel for the petitioner and Sri Kowturu Pavan Kumar, learned counsel for respondent.

The revision is directed against the order dated 30.10.2015 in E.P.No.41 of 2012 in P.L.A.No.349 of 2011 in P.L.C.No.198 of 2011 in the Court of the I-Additional District Judge, Nellore.

The circumstances for disposal of the revision are as follows:

The revision petitioner is admittedly the tenant of respondent herein of EP schedule. The subject matter of execution petition is as follows:

Sri Potti Sreeramulu Nellore District Registration Nellore Sub-Registration, Nellore Municipal Corporation, Nellore City, Achari Veedhi, Municipal Ward No.17, Old Door No.294, New Door No.17/2/147- an extent of 38 ankanams of RCC & MTC building in Ground Floor therein and an extent of 38 ankanams of RCC & MTC building in First Floor therein and an extent of 17 ankanams in 3 portions in backyard out of 93 ankanams.

The petitioner in the EP schedule property is running a bar and restaurant in the name and style Saritha Restaurant and Bar. The revision petitioner obtained licence in Form 2-B under the provisions of the A.P. Excise Act, 1968 from Excise Superintendent and the A.P. Excise (Grant of Licence of Selling by Bar and Conditions of Licence) Rules, 2005. The petitioner had valid lease of EP schedule till 30.06.2010 in his favour, which is a condition precedent for renewal of licence under the Rules. The petitioner and respondent had disputes in vacating the EP schedule. The parties to the revision to resolve these disputes preferred the mechanism under the Legal Services Authority Act, 1987 (for short 1987 Act) and invoked pre-litigation jurisdiction of Lok Adalat Bench, Nellore. The parties filed a petition for passing an Award to the effect that the revision petitioner shall vacate the building unconditionally and handover possession of the above building to respondent without any sort of objection or claim of any goodwill by 01.07.2011. On the basis of such lease agreement dated 30.07.2010, the parties requested Lok Adalat to pass an award in terms of memo of compromise between the petitioner and respondent which are enclosed to the petition. During the course of enquiry, the matter is referred to Lok Adalat and the dispute between parties is settled at the intervention of Lok Adalat.

Both parties and their counsel filed compromise memo which has been accepted, recorded and resulted in passing Award No.300 of 2010 dated 30.06.2010.

It is matter of record that with a view to giving one more year of legality to the possession of revision petitioner herein, the parties preferred PLC.No.198 of 2011 which substantially resembles the petition, terms, conditions of Award dated 30.06.2010, except for the minor change of 30.06.2012 for 30.06.2011. The prayer in the petition reads as follows:

This is a petition filed by the petitioner an award may be passed to the effect that the petitioner shall vacate the building unconditionally by 30.6.2012 and hand over possession of the above building to the respondent without any sort of objection or claim of any good will by 1.7.2012 after securing fresh lease agreement from the respondent till 30.6.2012 and securing Bar licence till 30.6.2012 on basis of such lease agreement dated 30.6.2011. The award may kindly be passed according to mutually agreed terms of memo of compromise between the petitioner and respondent which are enclosed herewith, as per the reason stated in the petition.

On 30.06.2011, the Lok Adalat passed the following Award:

Both parties present along with their respective counsel. Heard both parties. I have perused entire record and previous award. Both parties are appraised about the terms of compromise, which is filed before Lokadalat today. They have voluntarily agreed for the terms and conditions. Hence, the terms and conditions mentioned in the memo is recorded. Accordingly an award is passed today in their cases.

The respondent by filing E.P.No.41 of 2012 has put Award No.349 of 2011 dated 30.06.2011 to execution. The revision petitioner has taken factual and legal objections to the maintainability of E.P as well as delivery of vacant possession of E.P schedule to the respondent herein in terms of Lok Adalat Award No.349 of 2011. I propose to refer to these objections at the appropriate place of this order. It is brought on record and admitted by revision petitioner that the respondent filed W.P.No.3250 of 2013 questioning the renewal of Form 2B licence granted in favour of revision petitioner herein for the excise year 2012-13. The said writ petition was allowed on 25.06.2013. The revision petitioner aggrieved by the order of learned Single Judge filed W.A.No.1145 of 2013. Through order dated 13.08.2013, the writ appeal filed by the revision petitioner was dismissed. The filing of writ petition and writ appeal are brought on record through memo dated 04.02.2015 and the revision petitioner admits the filing of writ petition and writ appeal, as they are orders of this Court. The orders are made part of the revision in appreciating the rival contentions.

The revision petitioner has filed counter opposing the execution and the gist of the objections is that in case of pre-litigation conciliation and settlement, as per Section 22-E (5) of the Act, the permanent Lok Adalat transmits award passed by it to a civil Court having jurisdiction and such civil Court is empowered to execute the Award as a decree. According to the revision petitioner, the principal award dated 30.06.2011 in Award No.349 of 2011 cannot be put to execution without the same being transmitted by the permanent Lok Adalat in terms of Section 22-E(5) of the Act. The further objection is that the Award is not registered in terms agreed between the parties and for want of registration, the award cannot be executed. The respondent herein did not comply with the agreed terms and conditions and the revision petitioner refers to an alleged agreement of sale entered into between the parties for sale and purchase of EP schedule. The revision petitioner claims that on account of these circumstances, she cannot be vacated through E.P.No.41 of 2012. Though a specific objection as to the executability of Award No.349 of 2011 dated 30.06.2011 is not taken, the learned Senior Counsel appearing for the revision petitioner adds one more objection to the executability of decree by contending that the Award dated 30.06.2011 is not an executable decree. At best, what is contained in the Award, according to him, is the terms for operation between the parties for the lease ending 30.06.2011 or 30.06.2012.

The executing Court has considered the first two objections and rejected them with the following findings:

The contention of judgment debtor that Award should be registered otherwise E.P is not maintainable does not hold the field. This point is settled by the Honourable High Court in Beedam Reddappa Reddy Vs. Yellaboyina Vani and others reported in 2011(6) ALD 471. Their Lordships has clearly observed that the Award of Lok Adalat need not be sent for registration. Their Lordships at para 5 held as follows:

In this case, there is no dispute that with consent of the petitioner and respondents, the matter was referred to Lok Adalat, which passed an award and it is binding on the parties. If any document is required for registration, as per the award, it shall be done according to law and there is no requirement of the court sending the award of the Lok Adalat for registration.

Therefore, it is clear from the above judgment that the award passed by the Lok Adalat does not require any registration.

xxxxxxxxxxx xxxxxxxxxxx At the outset, it is seen from the record that the award passed by the Lok Adalath is under Section 21 of the Legal Services Act and the Lok Adalat is constituted u/s 19 of the Legal Services Authority Act. This is not an award passed by the Permanent Lok Adalat under Section 22 B of the Act. There is no Permanent Lok Adalat established in this District so far. When the award in this case is not passed by Permanent Lok Adalat, the relevancy of the provisions under Rule 22 E (5) in this case that the award is to be transmitted to the civil Court does not arise. Even the language used under Section 22 E (5) is word may. Since the award is passed by the District Legal Services Authority under Section 21 of the Act, in my considered view, the said contention of the Judgment debtor is not tenable.

Further, as per Section 6 (sic Rule 18) of the Legal Services Authorities Act, the Awards passed by the Lok Adalat in respect of pre-litigation stage shall be executable through the District Judges of the District in which Lok Award is held. There is no such provision either in the rules or in the sections seeking transmission of the award to the civil court. When the rule directly and clearly postulates that they shall be executed by the Court of District Judge the question of transmitting the award from the Legal Services to the Civil Court does not arise.

Hence, the revision.

I have noted the contentions of learned counsel appearing for the petitioner and perused the material available on record and the order impugned in the revision.

At the outset, I refer to the admitted circumstances of the case and the circumstances under which the revision petitioner availed PLC before Lok Adalat.

The petitioner is the tenant of respondent herein of EP schedule property and running bar and restaurant in the schedule premises. To secure a licence from the Excise Department, the petitioner among other requisites should enclose a deed of lease in his favour for schedule premises. Disputes on eviction or vacation of premises have arisen between petitioner and respondent resulting in likelihood of non-renewal of excise licence of petitioner. It is in this background the petitioner invoked the jurisdiction of Lok Adalat under the Act. The petition for PLC or passing award reads as follows:

This is a petition filed by the petitioner an award may be passed to the effect that the petitioner shall vacate the building unconditionally by 30.06.2011 and hand over possession of the above building to the respondent without any sort of objection or claim of any goodwill by 01.07.2011 after securing fresh lease agreement from the respondent till 30.06.2011 and securing Bar licnece till 30.06.2011 on basis of such lease agreement dated 30.07.2010. The award may kindly be passed according to mutually agreed terms of memo of compromise between the petitioner and respondent which are enclosed herewith. During the course of enquiry the matter is referred to Lok Adalath and the same is settled at the intervention of Lok Adalath.

It is matter of record that for the year 2011-12 the parties have followed the same procedure and Award dated 30.06.2011 was passed. As both the awards are same and similar, this Court, to avoid repetition of the contents does not refer to both the awards. The respondent questioning grant of 2-B licence for the year 2012-13 in favour of petitioner without a valid lease of EP schedule filed W.P.No.3250 of 2013. On 25.06.2013, W.P.No.3250 of 2013 was allowed. W.A.No.1145 of 2013 filed by revision petitioner was dismissed (see 2013 (6) ALD 130). I propose to refer to the order of the Division Bench at appropriate stage in the order. After all these efforts were unsuccessful, the present objections, it appears, are taken by the petitioner.

Sri M.S.Prasad, learned Senior Counsel for the petitioner, contends that E.P.No.41 of 2012 is not maintainable and also illegal, for according to the learned counsel, E.P.No.41 of 2012 is filed to execute the Award dated 30.06.2011 and that the Award is not transferred to the executing court as required by Section 22 E of the Act.

Section 22 E reads as follows:

22E. Award of Permanent Lok Adalat to be final.

(1) Every award of the Permanent Lok Adalat under this Act shall, on merit or in terms of a settlement agreement, be final and binding on all the parties thereto and on persons claiming under them.

(2) Every award of the Permanent Lok Adalat under this Act shall be deemed to be a decree of a civil court.

(3) The award made by the Permanent Lok Adalat under this Act shall be by a majority of the persons constituting the Permanent Adalat.

(4) Every award made by the Permanent Lok Adalat under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding.

(5) The Permanent Lok Adalat may transmit any award made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by that court.

By reference to the requirement under sub-section (5) of Section 22 E of the Act, it is contended for petitioner that unless the Award is transmitted by the permanent Lok Adalat to the civil Court having local jurisdiction, the Award is inexecutable.

On the other hand, Sri Pavan Kumar, learned counsel appearing for respondent, contends that Chapter VI A of the Act is exclusively intended for pre-litigation conciliation and settlement of disputes of public utility service organizations and not applicable to an Award passed at the instance of a party to pre-litigation dispute under Sections 19 to 21 of the Act. In other words, the contention of learned counsel for respondent is that Chapter VI A has no application to the pending execution in E.P.No.41 of 2012 or Award No.349 of 2011 and this contention is liable to be rejected. The contention of petitioner is noted to be rejected by this Court for the following reasons.

A close reading of the scheme under Section 22 A to E covered by Chapter VI A of the Act, it is clear that with a view to resolving the disputes of public utility services vis--vis the citizens, its customers, etc., establishment of permanent Lok Adalats is considered. The Lok Adalats established for this purpose deal with the disputes which are taken cognizance under Section 22 C of the Act and procedure under Section 22 D of the Act is followed which if parties before the permanent Lok Adalat have consented to and settled the dispute. The Award under Chapter VI A is in different set of circumstances and cannot be executed with a consent Award under Section 21 of the Act. To appreciate the legality of this contention, it is necessary to refer to Rule 18 of the Andhra Pradesh State Legal Authority Rules, 1995. Rule 18 reads as follows:

18. Execution of awards passed by the Lok Adalats in respect of pending cases and prelitigation cases:- The awards passed by the Lok Adalats in respect of pending cases shall be executable by the Courts in which those matters were pending prior to the passing by the Lok Adalats.

Provided that the awards passed by the Lok Adalats in respect of the matters at prelitigative stage shall be executable through the Court of District Judges of the District in which the Lok Adalats is held.

(i) Necessary certificate for refund of Court Fee will be issued by the Court which referred the case to the Lok Adalats to the person who is entitled for which refund of Court Fee.

(ii) On production of such certificate, the District Collector or the competent Revenue Authority shall refund the amount of Court Fee in the manner provided in the Andhra Pradesh Court Fees and Suits Valuation Act, 1956".

A plain reading of the above provisions makes it clear that the Awards referred to under Chapter VI A of the Act are different and distinct from the Awards passed by the Lok Adalat under Section 21 of the Act. Further, proviso to Rule 18 of the Rules provides for execution of Awards passed by Lok Adalats in pre-litigation cases. The contention of petitioner, if accepted, amounts to ignoring the distinct statutory scheme of passing Awards under Section 21 and Chapter VI A of the Act. The contention of petitioner that for execution, the award should be transmitted under Section 22-E of the Act fails and is accordingly rejected.

The further contention of learned counsel for the petitioner that there is no executable Award for filing E.P.No.41 of 2012 needs to be examined According to petitioner, the parties to the Award dated 30.06.2011 have agreed the terms and conditions and accordingly an Award is passed. According to the petitioner, had it been the case that there should also be a clause dealing with vacation or eviction of petitioner from EP schedule, such conditions would have been spelt out with clarity in the Award. In the absence of such a clause in the Award, it is contended that there is no executable Award. On the other hand, learned counsel appearing for the respondent draws the attention of the Court to the petition filed by the petitioner herein invoking the jurisdiction of Lok Adalat for settlement of dispute with certain terms and conditions. Learned counsel specifically draws the attention of this Court to the following portion:

This is a petition filed by the petitioner an award may be passed to the effect that the petitioner shall vacate the building unconditionally by 30.6.2012 and hand over possession of the above building to the respondent without any sort of objection or claim of any good will by 1.7.2012 after securing fresh lease agreement from the respondent till 30.6.2012 and securing Bar licence till 30.6.2012 on basis of such lease agreement dated 30.6.2011. The award may kindly be passed according to mutually agreed terms of memo of compromise between the petitioner and respondent which are enclosed herewith.

During the course of enquiry the matter is referred to Lok Adalath and the same is settled at the intervention of Lok Adalath. Both parties and their counsel filed compromise memo which reads as follows:

xxxx xxxx xxxx xxxx xxxx xxxx he petitioner shall vacate the building at the expire of the lease period or at any early date as required by notice to vacate unconditionally without any claim of good will. xxxx He contends that the terms and conditions are accepted between the parties and one of the conditions is that the petitioner herein shall vacate the building unconditionally by 30.06.2012. The counsel for the respondent relies upon the order passed by the Lok Adalat on 30.06.2011, which reads as follows:

Both parties present along with their respective counsel. Heard both parties. I have perused entire record and previous award. Both parties are appraised about the terms of compromise, which is filed before Lokadalat today. They have voluntarily agreed for the terms and conditions. Hence, the terms and conditions mentioned in the memo is recorded. Accordingly an award is passed today in their cases.

He further contends that on the contention of executability of award the findings recorded by a Division Bench of this Court in ALLA VENKATA KRISHNA REDDY V. GOVERNMENT OF ANDHRA PRADESH AND OTHERS between the parties is binding on this Court and the same cannot be ignored.

Now, the question for consideration is - whether the Award dated 30.06.2011 is executable or not?.

It is evident that in the writ appeal filed by the petitioner herein a Division Bench of this Court formulated the following questions for consideration:

1. Whether an applicant seeking renewal of license is required to fulfill the conditions under Rule 6 of the Rules even though Rule 9-A provides for renewal whereas Rule 6 provides for conditions to be fulfilled for grant of license, in the first instance?

2. What is the effect of the Lok Adalat Award No.349 of 2011 dated 30.06.2011 and whether the excise authorities could consider the case of the tenant on the basis of subsequent agreement of sale, which is disputed by the landlady?

Question No.2 deals with the effect of Lok Adalat Award No.349 of 2011 dated 30.06.2011 and whether the Excise Authorities could consider the case of tenant for renewal of licence on the basis of subsequent agreement of sale between parties, which is disputed by the landlady.

The second question has two limbs. First limb deals with the effect of Lok Adalat Award No.349 of 2011. In paragraph No.28, the Division Bench has recorded the findings as follows:

In our view, the question really is required to be considered from the standpoint of the award of the Lok Adalat, being Award No.349 of 2011 dated 30.06.2011. The said award records the terms and conditions of the compromise between the landlady and the tenant wherein the term of the lease was granted up to 30.06.2012 and where the tenant also undertook to vacate on expiry of the term. The tenant, therefore, has suffered a decree for eviction in terms of the said award and the landlady has already filed EP to execute the said award.

From the above finding, it is very clear that a Division Bench of this Court has treated the Award dated 30.06.2011 as a decree for eviction in terms of the said Award. As the finding on Question No.2 in the reported decision has become final, the finding of fact recorded by the Division Bench is binding on this Court and I have no hesitation to hold that the Award dated 30.06.2011 is as a result of terms and conditions agreed between the petitioner and respondent and one or the other condition agreed by petitioner is to vacate the schedule premises unconditionally by 30.06.2012. If the petitioner fails to conform to the agreed conditions, it does not lie in the mouth of petitioner to contend that the Award is not executable and on that E.P.No.41 of 2012 is liable to be dismissed. Further, the petitioner on the one hand takes full benefit of Award, completes both the terms granted by the Lok Adalat and then commits default in vacating the premises. The option available to the other party to the Award is to file EP and secure vacant possession.

The relevant portions of the petition and Award are already excerpted. I do not propose to reproduce or restate the commencement of pre-litigation case by the petitioner, what is the prayer of the petitioner and the Award accepted by the Lok Adalat. Stated in one sentence, the petitioner himself has gone before the Lok Adalat to say that she is prepared to vacate the schedule premises by the agreed date subject to the terms and conditions set out therein. If the petitioner fails to vacate by the agreed date, it cannot be said that the Award dated 30.06.2011 is inexecutable. For these two reasons, I am of the view that the second contention raised by the petitioner is without merit and is accordingly rejected.

The third contention raised by the learned senior counsel for petitioner is that the Award dated 30.06.2011 requires registration, as the lease is for more than 11 months. In the case on hand, this Court is not considering the grant of a lease in terms of the Award. If the Award contains any of the clauses, which according to Section 17 of the Registration Act requires registration, then it is for a party who wishes to take advantage of such clause to get the document or Award registered. In the case on hand, the prayer of respondent/DHr is to secure vacant possession of EP schedule property as agreed by the revision petitioner through Award dated 30.06.2011. As rightly contented by the learned counsel for the respondent, the Award does not require registration. All the three objections raised by the petitioner fail and are rejected.

The revision fails and is accordingly dismissed. There shall be no order as to costs.

Consequently, miscellaneous petitions, if any pending, also stand disposed of.

_____________ S.V.BHATT, J Date: 11.12.2

S 5 of limitation Act is not applicable to filing of execution application

 

Under the scheme of the Limitation Act, execution applications, like plaints have to be presented in the Court within the time prescribed by the Limitation Act. A decree holder does not have the benefit of exclusion of the time taken for obtaining the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the Court in drawing up and signing the decree. 
In this view of the matter, the High Courts of Patna and Calcutta in Sri Chandra Mottli Deva v. Kumar Binoya Nand Singh and Ors. MANU/BH/0057/1976 : AIR (1976) Pat 208 and Sunderlal & Sons v. Yagendra Nath Singh and Anr. MANU/WB/0090/1976 : AIR1976Cal471 have correctly laid down the law; the opinion to the contra expressed by the High Court of Calcutta in Ram Krishna Tarafdar v. Nemai Krishna Tarafdar and Ors. MANU/WB/0035/1974 : AIR1974Cal173 is wrong. Section 5 of the Limitation Act has no application; Section 12(2) of the Limitation Act is also inapplicable to an execution petition. If the time is reckoned not from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provisions of the Limitation Act as well as of Order XX and order XXI Rule 11 C.P.C. which is clearly impermissible.
Period of limitation under Article 136 of the Limitation Act runs from the date of the decree and not from the date when the decree is actually drawn up and signed by the Judge.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 5005 of 1999
Decided On: 14.09.1999
West Bengal Essential Commodities Supply Corporation Vs. Swadesh Agro Farming & Storage Pvt. Ltd. and Ors.
Hon'ble Judges/Coram:
K. Venkataswami and S.S.M. Quadri, JJ.
Citation: (1999) 8 SCC 315

1. Leave is granted.

2. The short but a question of some significance which arises for consideration in this appeal, is whether the period of limitation, under Article 136 of the Limitation Act, 1963, will start from the date of the decree or from the date when the decree is actually drawn up and signed by the judge.

3. The facts giving rise to the question may be noticed here.

4. On June 11, 1980, the appellant filed Suit No. 504 of 1980 in the High Court of Judicature at Calcutta against the respondents for recovery of a sum of Rs. 82, 933.80 with interest. On March 8, 1982, the High Court decreed the suit ex-parte for the said amount with interest thereon at the rate of 6% per annum. However, the decree was actually drawn up and signed by the learned Judge on August 9, 1983. The appellant filed application, G.A. No. 374 of 1995, for execution of the decree before the High Court on June 5, 1995. The learned Executing Judge ordered execution of the decree. But, on appeal by the respondents, the Division Bench of the High Court set aside the order of the learned Executing Judge holding that the execution petition was barred by limitation under Article 136 of the Limitation Act and thus allowed the appeal on September 30, 1997. That judgment and order is challenged by special leave, in this appeal.

5. Mr. Tapas Ray, learned senior counsel appearing for the appellant, has argued that for purposes of Article 136 of the Limitation Act, the starting point of limitation is not the date of the decree but the date when the decree becomes enforceable; it was only when the decree was actually drawn up and signed, after a lapse of one year and three and three months of delivering the judgment, that it became enforceable, and from that date the appellant was entitled to the benefit of full period of limitation; so its application for execution could not be held to be barred by limitation. According to Mr. Ray, for an application under Order XXI Rule 11(2) of the CPC, a copy of the decree must be available and the period of limitation must be reckoned from the date when the Court was in a position of making a copy of the decree available as it was on that, date the decree became executable. The learned counsel urged that Rule 11(2) of Order XXI must be read with Rules 6 and 7 of Order XX C.P.C. and so read, for purposes of execution, the decree would come into existence only when it was actually drawn up and signed and not on the date when the judgment was pronounced.

6. Mr. P. Bhaskar Gupta, learned senior counsel for the respondents, has submitted that under Rule 6A(2)(b) of Order XX C.P.C., for purposes of execution of the decree the last portion of the judgment itself will be treated as a decree, irrespective of the date when the decree is actually drawn up and signed and that under Rule 7 of Order XX C.P.C. the decree has to bear the date of the judgment; from the date of the judgment till the expiry of the period of limitation, the decree holder had the opportunity of executing the decree so he cannot have any grievance for late drawing up of the decree and stamping the date of the judgment on it. Learned senior counsel invited our attention to Sub-rule (3) of Rule 11 of Order XXI C.P.C. and contended that the Executing Court might require the applicant seeking execution of the decree under Sub-rule (2) to produce a certified copy of the decree, but the execution petition need not be accompanied by a certified copy of the decree. Sections 12(2) and 5 of the Limitation Act, submitted the learned Counsel, did not apply to execution petitions and if the contention of the appellant were to be accepted then it would amount to rewriting those provisions so as to provide for excluding the time for preparation and signing of the decree; therefore, that contention is liable to be rejected.

7. On the above contentions, we shall commence the determination of the question by first reading Article 136 of the Limitation Act which is as follows:

"136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court. Twelve years [When] the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought takes place: 

Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation."

8. From a perusal of the Article, extracted above, it is clear that for execution of any decree (other than a decree granting a mandatory injunction) or order of a civil court, a period of 12 years is prescribed; Column 3 contains two limbs indicating the time from which period of limitation begins to run, that is, the starting point of limitation; they are: (i) when the decree or order becomes enforceable and (ii) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place. The proviso says that there shall be no period of limitation for enforcement or execution of decree granting a perpetual injunction. We are concerned here with the first of the above-mentioned starting points, namely, when the decree or an order becomes enforceable.

A decree or order is said to be enforceable when it is executable. For a decree to be executable, it must be in existence. A decree would be deemed to come into existence immediately on the pronouncement of the judgment. But it is a fact of which judicial notice may be taken of that drawing up and signing of the decree takes some time after the pronouncement of the judgment; the CPC itself enjoins that the decree shall be drawn up expeditiously and in any case within 15 days from the date of the judgment. If the decree were to bear the date when it is actually drawn up and signed then that date will be incompatible with the date of the judgment. This incongruity is taken care of by Order XX Rule 7 C.P.C. which, inter alia, provides that the decree shall bear the date and the day on which the judgment was pronounced.

9. To enable a person who would like to execute the decree before it is actually drawn up, Rule 6A is inserted in the Code by the Amendment Act, 1976 (Act 104/76), which is extracted hereunder:

6-A. Last paragraph of judgment to indicate in precise terms the reliefs granted--

(1) The last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment.

(2) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible, and, in any case, within fifteen days from the date on which the judgment is pronounced; but where the decree is not drawn up within the time aforesaid, the Court shall, if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay, and thereupon-

(a) an appeal may be preferred against the decree without filing a copy of the decree and in such a case the last paragraph of the judgment shall, for the purposes of Rule 1 of Order XLI, be treated as the decree; and

(b) so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy of that paragraph only without being required to apply for a copy of the whole of the judgment; but as soon as a decree is drawn up, the last paragraph of the judgment shall cease to have the effect of a decree for the purpose of execution or for any other purpose:

Provided that, where an application is made for obtaining a copy of only the last paragraph of the judgment, such copy shall indicate the name and address of all the parties to the suit.

10. Rule 6A enjoins that the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. It has fixed the outer time limit of 15 days from the date of the pronouncement of the judgment within which the decree must be drawn up. In the event of the decree not so drawn up, Clause (a) of Sub-rule (2) of Rule 6A enables a party to make an appeal under Rule 1 of Order XLI C.P.C. without filing a copy of the decree appealed against and for that purpose the last paragraph of the judgment shall be treated as a decree. For the purpose of execution also, provision is made in Clause (b) of the said Sub-rule which says that so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be a decree. Clause (b) has thus enabled the party interested in executing the decree before it is drawn up to apply for a copy of the last paragraph only, without being required to apply for a copy of the whole of the judgment. It further lays down that the last paragraph of the judgment shall cease to have the effect of the decree for purposes of execution or for any other purposes when the decree has been drawn up.

11. It follows that the decree became enforceable the moment, the judgment is delivered and merely because there will be delay in drawing up of the decree, it cannot be said that the decree is not enforceable till it is prepared. This is so because an enforceable decree in one form or the other is available to a decree holder from the date of the judgment till the expiry of the period of limitation under Article 136 of the Limitation Act.

12. In Rameshwar Singh v. Homeswar Singh AIR (1921) PC 31 it was held:

They (Their Lordships) are of opinion that in order to make the provisions of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being endorsed.

13. There may, however, be situations in which a decree may not be enforceable on the date it is passed. First a case where a decree is not executable until the happening of a given contingency, for example, when a decree for recovery of possession of Immovable property directs that it shall not be executed till the standing crop is harvested, in such a case time will not begin to run until harvesting of the crop and the decree becomes enforceable from that date and not from the date of the judgment/decree. But where no extraneous event is to happen on the fulfilment of which alone the decree can be executed it is not a conditional decree and is capable of execution from the very date it is passed (Yeshwant Deorao v. Walchand Ramchand MANU/SC/0033/1950 : [1950]1SCR852 ). Secondly, when there is a legislative bar for the execution of a decree then enforceability will commence when the bar ceases. Thirdly, in a suit for partition of Immovable properties after passing of preliminary decree when, in final decree proceedings, an order is passed by the court declaring the rights of the parties in the suit properties, it is not executable till final decree is engrossed on non-judicial stamp paper supplied by the parties within the time specified by the Court and the same is signed by the Judge and sealed. It is in this context that the observations of this Court in Shankar Balwant Lokhande (Dead) by LRs. v. Chandrakant Shankar Lokhande and Anr. MANU/SC/0243/1995 : (1992)IILLJ18SC have to be understood. These observations do not apply to a money decree and , therefore, appellant can derive no benefit from them.

14. In the instant case, the decree is a money decree. The decree became enforceable immediately on the pronouncement of the judgments as thereupon a deemed decree came into existence. It cannot, therefore, be said that the delay in drawing up of the decree renders it unenforceable from the date of the judgment.

15. The next contention of Mr. Ray is that due to the court taking more than a year and three months to draw up and sign the decree, the period of limitation of 12 years, available to the appellant, is cut short so the starting point of limitation has to be computed from the date of signing of the decree to avert hardship and prejudice to him. The submission appears to be attractive, but falls to scrutinizing. The argument is obviously based on the maxim "actus curiae neminem gravabit" (an act of the court shall prejudice no man). It would apply to relieve a party of the hardship or prejudice caused due to the act of the Court. But to invoke this maxim it is not enough to show that there is delay in drawing up of the decree, it must also be shown that the appellant has suffered some hardship or prejudice due to the delay of the Court. In other words, there must be a nexus between the act of the court complained of and the hardship or prejudice suffered by the party.

16. In Raj Kumar Dey and Ors. v. Tarapada Dey and Ors. MANU/SC/0018/1987 : [1988]1SCR118 , the Calcutta High Court had quashed the registration of the award on the ground that it was presented for registration beyond time. This Court applying, inter alia, the above maxim held that the High Court was in error in quashing the registration of the award. There, during the material period, the award was in the custody of the Court and the arbitrator, inspite of his efforts, could not have got it registered; it was presented for registration the very next day it was returned to the arbitrator.

17. In Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors. MANU/SC/0313/1996 : [1996]1SCR1154 this Court granted interim directions in favour of the appellants to pay licence fee at the concessional rate. At the time of final disposal, it was found that the appellants were not entitled to the concessional rate. Applying the maxim "actus curiae neminem gravabit", the respondents were ordered to be paid the balance amount together with interest.

18. In these cases, as can be seen, there was nexus between the action of the Court and the prejudice suffered by the party. But, in the instant case, there is no nexus between drawing up of the decree after more than a year from the date of the judgment and its execution petition getting barred by limitation. It may be noticed here that the scheme of the Code, having taken note of the delay in preparation and signing of the decree, provides enough safeguards to the parties to execute the decree from the date of the judgment/ decree till the expiry of the period of limitation.

19. The decree-holder could have enforced the money decree immediately on the pronouncement of the judgment by making an oral application under Sub-rule (1) of Rule 11 of Order XXI C.P.C. For filing an application under Sub-rule (2) of Rule 11 C.P.C., a copy of the decree need not be enclosed. What all Sub-rule (3) of the said Rule says is that the Court may require the applicant under Sub-rule (2) to produce a certified copy of the decree. On being required to do so, it could have produced the last portion of the judgment which has the effect of the decree under Rule 6A of Order XX C.P.C. It is not a case where the appellant lost the period of limitation because of any act of the Court but it is a case where the appellant failed to apply for execution of the decree for reasons best known to it and how seeks to take advantage of the fact that the Court took time for drawing up and signing the decree. In our view, the delay in drawing up and signing the decree did not cause any prejudice to him. There is no nexus between the late drawing up of decree by the Court and the filing of the execution petition by the appellant after the expiry of the limitation.

20. Under the scheme of the Limitation Act, execution applications, like plaints have to be presented in the Court within the time prescribed by the Limitation Act. A decree holder does not have the benefit of exclusion of the time taken for obtaining the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the Court in drawing up and signing the decree. In this view of the matter, the High Courts of Patna and Calcutta in Sri Chandra Mottli Deva v. Kumar Binoya Nand Singh and Ors. MANU/BH/0057/1976 : AIR (1976) Pat 208 and Sunderlal & Sons v. Yagendra Nath Singh and Anr. MANU/WB/0090/1976 : AIR1976Cal471 have correctly laid down the law; the opinion to the contra expressed by the High Court of Calcutta in Ram Krishna Tarafdar v. Nemai Krishna Tarafdar and Ors. MANU/WB/0035/1974 : AIR1974Cal173 is wrong. Section 5 of the Limitation Act has no application; Section 12(2) of the Limitation Act is also inapplicable to an execution petition. If the time is reckoned not from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provisions of the Limitation Act as well as of Order XX and order XXI Rule 11 C.P.C. which is clearly impermissible.

21. In the result, we hold that the period of limitation under Article 136 of the Limitation Act runs from the date of the decree and not from the date when the decree is actually drawn up and signed by the Judge. We, therefore, do not find any illegality in the impugned judgment of the High Court. The appeal fails and it is accordingly dismissed. No costs.

After Issuance of 41-A CrPC notice, Police Can't arrest Without obtaining permission from the Magistrate

 THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

 CRIMINAL PETITION No.824 of 2022

 ORDER 

This petition is filed under Section 438 of the Code of Criminal Procedure, 1973, seeking bail to the petitioner/A.1 in the event of his arrest in connection with Crime No.109 of 2021 of Central Crime Station, WCO TeamV, Hyderabad, registered for the offences punishable under Sections 406, 420 read with Section 34 IPC. 

2. The case of prosecution is that the de facto complainant lodged a complaint stating that in September, 2020, he came into contact with A1 through his friend Ibrahim and that A1 has introduced himself as Doctor in Virinchi Hospital and running a clinic at Narayanaguda. In January, 2021, A1 has requested the de-facto complainant to provide a sum of Rs. 45,00,000/- and assured to repay the same with good interest on or before 01.03.2021, and on believing his words, he paid an amount of Rs.25,00,000/- on 16.01.2021 and Rs.20,00,000/- on 21.01.2021 by procuring the said amounts from his friends. But, on completion of the said period, A1 and his father/A2 dodged the matter and on several requests, A1 has issued a cheque for a sum of Rs.10,00,000/-, but the same was bounced on its presentation before the Bank, thereby cheated him. 

3. Learned Counsel for the petitioner Mr.Rajender Khanna, submits that earlier in Crl.P.No.8721 of 2021 filed by petitioner for pre-arrest bail, this Court has directed the police concerned to follow the procedure under Section 41-A Cr.P.C., and the guidelines formulated by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar1 . Learned counsel submits that after disposal of the said petition, petitioner was issued notice under Section 1 (2014) 8 SCC 273 LK, J Crl.P.No.824 of 2022 2 41-A Cr.P.C., and he has appeared before the police on two occasions, and whenever he appeared before them, there was no receipt of acknowledgment from the police and he was constrained to sent all the relevant material to the Director General of Police as well as Commissioner of Police. He further submits that in all the cases where notice under Section 41-A Cr.P.C., was issued, the police are not issuing any acknowledgment and some times, they are coming up saying that the accused is not cooperating with the investigation and taking steps to arrest the accused, and hence, the petitioner’s case may be considered for grant of pre-arrest bail.

4. On the other hand, learned Assistant Public Prosecutor submits the police have issued notice under Section 41-A Cr.P.C., and they are already following the guidelines formulated by the Apex Court in Arnesh Kumar’s case (supra). He further submits that the police are going to file a report before this Court in another case about the procedure to be adopted. 

5. This Court has already directed the Director General of Police to frame guidelines with regard to issuance of acknowledgment in the cases where accused appears before the police under Section 41-A Cr.P.C., and the same cannot be at the whims and fancies of the police. If the accused feels that the police failed to follow the procedure under Section 41-A Cr.P.C. or the guidelines of the Apex Court in Arnesh Kumar’s case (supra), they could as well come before this Court by filing contempt petition against the concerned police officer with relevant material to substantiate their allegations, but on this basis, they cannot seek anticipatory bail. It is appropriate to mention that after issuance of notice under Section 41-A Cr.P.C., if the police feels that the accused has to be arrested, without obtaining the permission from the Magistrate concerned, they cannot arrest the accused. LK, J Crl.P.No.824 of 2022 3 

6. Accordingly, the Criminal Petition is disposed of, directing the police concerned to follow the procedure as contemplated under Section 41-A Cr.P.C., and the guidelines formulated by the Apex Court in Arnesh Kumar’s case (supra). 

7. Consequently, miscellaneous applications pending, if any, shall stand closed. 

________________________ LALITHA KANNEGANTI, J 7th February, 2022. sj