IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 25TH DAY OF MARCH, 2011 BEFORE THE HON’BLE MR. JUSTICE SUBHASH B. ADI REGULAR FIRST APPEAL NO.822/2002 BETWEEN: State Bank of India, Branch at Harugeri Raibag Taluk, Belgaum district, Herein represented by its Branch Manager Sri. K.G.Kayat. Appellant (By Sri. K.L. Patil, Advocate) AND: 1. Nagappa (Nagesh) Vishnu Revanakar Age 50 years, r/o 348/2 Hishobakar Building Sambhaji Galli, Mahadwar road, Belgaum. 2. Smt. Sudha W/o Ramachandra Anvekar, Age 38 years, 0cc: household work, R/o Karwar(Bad). 3. Smt. Mala Dattaram Veranekar Age 35 years, 0cc: household work, R/o Near Zari Galli, Chikodi, Belgaum district. 4. smt. Lalitha Rarnadas Bhat Age 32 years, 0cc: household work, R/o Aithino Panaji (Goa) 5. Smt. Mangala Ravikant Sethamahamani Age 28 years, occ household work, R/o vai dist. Satara. 6. Murigeppa Shivappa Halawai, Age 48 years, 0cc: General Merchant and Commission agent, Gavali Gallai Sangali. Respondents (respondents are served through paper publication) This appeal is filed under Section 96 of CPC against the judgment and decree dated 19.4.02 passed in FDP 10/93 on the file of the Civil Judge(Sr.Dn) Gokak, dismissing the petition filed for drawing up of final decree. This appeal coming on for hearing this day, the Court, delivered the following: JUDGMENT Petitioner in FDP is in appeal against the rejection of the Final Decree Petition No.10/93 by order dated l9t1 April. 2002 on the file of the Civil Judge(Senior Division) Gokak. 2. Defendants, though served, have remained unrepresented. The appeal is of the year 2002 and is listed for final hearing. Accordingly, the appeal is disposed of, 3. The petitioner in the FDP had obtained a decree in O.S.No.156/1981 dated 17/11/1982 for recovery of Rs.60972.50 paise. The trial Court decreed the suit as under: Suit of the plaintiff is decreed with costs. Defendants No.1 to 3 are held liable jointly and severally to pay the suit claim along with future interest at the rate of 18 per cent per annum till the realization of the same. The defendants are granted six months time to pay the same along with interest accrued thereon and on their failure to pay the same, the plaintiff is at liberty to sell the mortgaged house and the hypothecated can for realizing the decreetal dues with interest accrued thereon and if the amount so realized is found insufficient, then to proceed against the defendants personally. Draw a preliminary decree accordingly.” 4 The nature of the decree clearly suggests that it is a preliminary decree. It provides for the plaintiff-the decree holder to take certain steps for recovery of decreetal amount. Since the defendants did not pay the decreetal amount within six months as directed b’ the trial Court and the decree being a preliminary decree as against the mortgaged property and hypothecation of van, the plaintiff initiated proceedings in FDP No.10/ 1993. The petition was opposed by the defendants-judgment debtors contending that the final decree proceedings are barred by time. The decree was passed on 17.11.1983 and six months was granted and it expired on 17.5.1984. Thereafter, after a lapse of 10 years final decree proceedings have been initiated. In view of Article 137 of the Limitation Act, since there is no specific limitation as provided, 3 years period of limitation is applicable in case of final decree proceedings and accordingly, they sought dismissal of the petition. In the said proceedings, the decree holder-petitioner had also filed an application for condonation of delay seeking extension of limitation. The said application was also rejected. 4. The Court below rejected the final decree petition on the ground that the limitation of 3 years applicable form the date on which right accrues to the decree holder, the limitation is 3 years from the date of preliminary decree i.e. 17/11/1983. It is against the rejection of the final decree proceedings, this appeal is filed. 5. It is not in dispute that the preliminary decree directs the defendants to pay the decreetal amount within six months form the date of the decree and thereafter confers right on the decree holders to realize the amount by selling the mortgaged house property and also the hypothecated van and the decree also shows that it is a preliminary decree. If the preliminary decree is required to be proceeded with the final decree proceedings, the question arises is as to 6 whether limitation is applicable in between preliminary decree and the final decree. 6. The Apex Court in a judgment reported in 2009 SCC 9 689 in Shub Karan Bubna “ci Shub Karan Prasad Bubna Vs. Sita Saran Bubna, on interpretation of Order 16 Rule 18, has held: preliminary decree for partition only identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties. That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings. Thus the application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds.” As the provisions of the Code stand at present, initiation of final decree proceedings does not depend upon the filing of an application for final decree for initiation(unless the local amendments require the 7 same). The Code does not contemplate filing an application for getting the final decree. Therefore, when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing dates for further proceedings till a final decree is passed. It is the duty and function of the Court. Performance of such function does not require a reminder or nudge from the litigant. The mindset should be to expedite the process of dispute resolution/application filed by the plaintiff. 7. No doubt, the decision of the Apex Court arises in a partition. The principles enunciated is that the final decree proceedings are continuation of the original proceedings and it is the duty of the Court to give a final decree as final relief and there is no reason for the litigant or the party to file an application to seek final decree as the proceedings being continuation of original proceedings. In view of the above cited decision, in this case also, the prelimina decree by itself cannot be executed as it involves sale of the 8 mortgaged property and also sale of hvpothecated van for recovery of the decreetal amount. The trial Court has determined the rights of the plaintiff in the preliminary decree. In view of the principles enunciated by the Apex Court, it leaves no doubt that the final decree proceedings are continuation proceedings and there is no requirement of filing an application. If such an application is filed, it cannot be rejected on the ground of limitation and such limitation does not come into play in between preliminary decree and the final decree proceedings. Since the petition filed by the decree holder for final decree proceedings has been rejected solely on the ground of limitation, I find the matter requires reconsideration by the learned Civil Judge(Senior Division), Gokak. Accordingly, the impugned order dated 19th April. 2002 in FDP No.10/1993 on the file of the learned Civil 9 Judge(Senior Division), Gokak, is hereby set aside. The matter is remanded to the learned Civil Judge(Senior Division), Gokak to proceed with the final decree proceedings on the basis of the application filed by the decree holder in accordance with law. Sd/a 3UDGE Kmv