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Whether executing Court can receive preliminary decree before final decree made ?

The Supreme Court of India on Monday, March 20, 1995 in Shankar Balwant Lokhande (Dead) by Lrs.Vs. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 : 1995 (2) SCR 776 : (1995) 3 SCC 413 : 1995 (2) SCALE 318 : JT 1995 (3) SC 186 held that mere giving of a direction to supply stamped paper for passing a final decree does not amount to passing a final decree.

Final Decree

A bench comprising of RAMASWAMY, K. AND HANSARIA B.L. JJ. observed that Until a final decree determining the rights of parties by metes and bounds is drawn up and engrossed on stamped paper by parties, there is no executable decree.

Allowing the appeals, the Apex Court held that Limitation does not begin to run from the date when the direction is given to pass the final decree.

Whether executing Court can receive preliminary decree before final decree made ?

The executing Court cannot receive the preliminary decree unless the final decree is passed as envisaged under Order 20 Rule 18(2) of the CPC.

When decree becomes executable ?

After a final decree is passed and a direction is issued to pay stamped papers for engrossing the final decree thereon and the same is duly engrossed on stamped papers it becomes executable or becomes an instrument duly stamped.

Thus the condition precedent is to draw up a final decree and then to engross it on stamped paper of required value. These two acts together constitute a final decree, crystallizing the rights of parties in terms of the preliminary decree. Till then there is no executable decree as envisaged in Order 20 R 18(2) CPC attracting the residuary Art 182 of the old Limitation Act.

Limitation when starts ?

Limitation begins to run only after a final decree is engrossed on stamped papers.

Facts of the Case

Respondent and appellants were entitled to l/6th and 5/6th share respectively of a certain property by virtue of a preliminary decree of the trial Court. An order was passed to prepare a final decree on 19.4.58 but was not prepared because of non supply of non-judicial stamps by the appellants. However the first respondent supplied the stamped papers and got the final decree engrossed on it by the trial Court. An application for execution was filed by the appellants on 13.3.68 but was dismissed on grounds of limitation.

On appeal the High Court held that there was no decree for execution in existence. An application was thereafter filed before the trial Court on 3.2.76 to accept non-judicial stamps and pass a final decree, but was contested by the respondent as barred by limitation. The trial Court overruled the objection and allowed the application.

On first appeal the Single Judge held that it was barred by limitation since the application was not made within 3 years form the date of direction of the Civil Court. The Division Bench dismissed the appeal in limine. Hence these appeals.

Referred Cases

Yeshwant v. Walchand, AIR (1951) SC 17, relied on. Maksudan Pd. v. Lakshmi Devi, AIR (1983) Pat 105 and Smt. Kotipalli Mahalakshmamma v. K. Ganeshwar Rao, AIR (1960) AP 54, approved.

Pandivi Satyananadam v. P. Namayya, AIR (1938) Mad 307 and Basamma v. Sivamma, AIR (1963) Mysore 323, disapproved.

Rameshwar Singh v. Homeshwar Singh, AIR (1921) PC 31, referred to.

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