Bimal Kumar & Anr vs Shakuntala Debi & Ors

3. Filtering the unnecessary details, the facts which are requisite to be frescoed for the purpose of disposal of the present appeal are that one Kanilal Kasera filed a Partition Suit No. 131 of 1962 against his father, Nanak Kasera, and other brothers. The suit was compromised leaving aside Kishori Lal Kasera, the father of the present appellants, and a joint petition of compromise between the plaintiff and the defendant Nos. 1, 2, 4 to 9 and 11 to 18 was filed. It is worth noting that Kishori Lal Kasera had appeared in the suit and filed the written statement but thereafter chose not to contest.

4. The petition of compromise contained that the defendant Nos. 1, 9, 11 and 12 had relinquished and given up all their interests in item Nos. 3 and 8 of the suit schedule of property, being Holding No. 285 of new holding No. 509A of Ward No. II situated on portion of Municipal Survey Plot No. 621 and Holding No. 431 of Ward No. 1 3 situated on Municipal Survey Plot No. 902, and further declared that they had no claim or concern with any other properties involved in the suit; that the business, namely, "SEVEN BROTHERS STEEL FURNITURE WORKS", item 5 of

the schedule, belonged exclusively to the defendant No. 2, Moti Lal Kasera, and neither the plaintiff nor any of the other defendants either ever had or shall ever have any claim or interest; and that one half of the house and premises comprised in Municipal Holding No. 431, Ward No. 1, item 3 of the schedule, and half of Holding No. 509 A of Ward II, situated on portion of M.S. Plot No. 631, item 2 of the schedule, shall belong to the defendant No. 2 with all the liabilities and outstanding dues and the plaintiff and the other defendants shall have no liabilities or interest in the said properties; and that the business carried on under the name of `Chotanagpur Tin Works', item 6A of the schedule, was the sole separate business of the defendant No. 5, Prakash Kumar Kasera, and the plaintiff or the other defendants had no claim on the said property.

7. It was also agreed upon that the House situated on Holding 6 Ward II of the Ranchi Municipality being comprised of Khata No. 71 plot No. 72 area 61 decimal and

plot No. 79 area 7= decimal total area measuring 14 decimal, being item No. 4 of the schedule and the house and premises comprised of Holding No. 180 Ward III being survey plot No. 92 area 0.30 Karies and Municipal Survey Plot No. 92 area 0.063 Karies total area 0.093 Karies of Hajamtolio, Ranchi being item No. 5 were separate and exclusive properties of Smt. Rama Devi and shall belong exclusively to the defendant No. 7, Srimati Rama Devi, the widow of Hira Lal Kasera, and no one else shall have any claim or concern in the said property; that the shop premises being holding No. 509 B of Ward II of Ranchi Municipality situated on portion of M.S. Plot No. 621 being 6 item No. 1 of the schedule and the house premises comprised of Holding No. 133(g) of Ward II being item No. 8 and the properties comprised Holding No. 145 A of Ward No. I measuring 6= decimals being plot No. 268 of Khata No. 34 of Village Konka, being item No. 9 of the schedule belonged to the defendant No. 8, Sreemati Munitri Debi, wife of Prakash Lal Kasera, the defendant No. 5, and none had any claim or interest; that the house and the premises situated at Madhukam, Ranchi comprised in Holding No. 318 of -

The said suit was dismissed on 27th August, 1994. Being dissatisfied with the said decision, Kishori Lal Kasera preferred Title Appeal No. 109 of 1994 which was dismissed for want of prosecution on 6.1.2004. At this juncture, the respondents herein filed execution case No. 8 of 2004 seeking execution of the decree passed in P.S. No. 131 of 1962. Be it noted, in the meantime, Kishori Lal Kasera had breathed his last and, therefore, the execution was levied against the legal heirs, the appellants herein.

12. An objection was raised by the appellants that the execution proceeding was barred by limitation and hence, deserved to be dismissed. The learned Sub-Judge dismissed the execution proceedings on the ground that it was absolutely barred by limitation.

Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held and pursuant to the result of further inquiry, a final decree shall be passed. 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 finally determined and a decree is passed in accordance with such determination, which is the final decree. Thus, fundamentally, the distinction between preliminary and final decree is that: a preliminary decree merely declares the rights and shares of the parties and leaves room for some -

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."

we may usefully refer to the dictum in Ratan Singh v.

33. In Ram Bachan Rai (supra), the two-Judge Bench took note of the fact that an application under Order IX Rule 13 for setting aside the ex parte decree was dismissed which was assailed in a miscellaneous appeal and -

holder. The Special Leave Petition was filed only against the Order dated 1.7.1985 refusing to review its judgment and decree dated 2.9.1983. The stay of operation of the Order dated 1.7.1985 for all intent and purport was meaningless as the review petition already stood dismissed.

taken to the same and, therefore, reliance placed on the said decision is misconceived.

36. Ex consequenti, the appeal is allowed, the order passed by the High Court in Civil Revision is set aside and that of the executing court is restored. The parties shall bear their respective costs.

February 27, 2012.