1 -Shail Dwivedi W/o Late Shri Gyandev Dwivedi Aged About 74 Years R/o (C.G.) v. 1-Badri Prasad
Case Details
1 2025:CGHC:10999 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 202 of 2025 1 -Shail Dwivedi W/o Late Shri Gyandev Dwivedi Aged About 74 Years R/o (C.G.) Vidya Upnagar, And Distt. Bilaspur, Bilaspur Teh. 2 -Jaidev Dwivedi S/o Late Shri Gyandev Dwivedi Aged About 50 Years R/o Vidya Upnagar, Bilaspur, Teh. And Distt. Bilaspur (C.G.) ... Petitioner(s) versus 1-Badri Prasad (Died) Through L.Rs Nil
Legal Reasoning
1.1 - (A) Dinesh Kumar Dubey S/o Late Shri Badri Prasad Aged About 55 Years R/o Village Purgaon, Teh. Bhilaigarh, Distt Baloda Bazar-Bhatapara (C.G.) Current Address- Brahman Para, Ward No. 05, Champa, Teh. Champa Janjgir-Champa Distt. 1.2 - (B) Premnath Dubey S/o Late Shri Lakhan Lal R/o Village Purgaon, Teh. (C.G.) Bhilaigarh, Bazar-Bhatapara Baloda Distt 1.3 - (C) Smt. Lata Devi W/o Late Shri Jeevanlal Dubey Aged About 58 Years R/o Village Khokhsa, Teh. Janjgir, Distt. Janjgir-Champa (C.G.) 2 - Dayalu Sharan Dubey S/o Lakhanlal Dubey Aged About 70 Years R/o (C.G.) Village Khokhsa, Janjgir-Champa Janjgir, Distt. Teh. 3 - Sapna Dubey W/o Rajesh Dubey Aged About 39 Years Through Shail Dwivedi, R/o Vidya Upnagar, Bilaspur, Teh. And Distt. Bilaspur (C.G.) 4 - Aparna Choubey W/o Shailendra Choubey Aged About 40 Years Through Shail Dwivedi, R/o Vidya Upnagar, Bilaspur, Teh. And Distt. Bilaspur (C.G.) 5 - Bhavana D/o Late Shri Gyandev Aged About 35 Years R/o Old Sarkanda, Infront Of Shivghat, Bilaspur, Tah. And Distt Bilaspur (C.G.) 6 - Snehlata W/o Ramesh Dubey Aged About 60 Years R/o Village Bhogahapara, Shivrinarayan, Tah. Nawagarh, Distt Janjgir Champa (C.G.) 7-Dharmanand (Died), Through L.Rs. Nil 7.1- (A) Ashutosh Dwivedi S/o Late Shri Dharmanand Aged About 45 Years R/o Village Bhogahapara, Shivrinarayan, Tah. Nawagarh, Distt Janjgir (C.G.) Champa 2 7.2-(B) Chandrarekha D/o Late Shri Dharmanand Aged About 40 Years R/o Village Bhogahapara, Shivrinarayan, Tah. Nawagarh, Distt Janjgir Champa (C.G.) 7.3-(C) Chandrakanta D/o Late Shri Dharmanand Aged About 55 Years R/o (C.G.) Village Sothi, Champa Akaltara, Janjgir Distt Tah. 8-Dwarika Prasad (Died), Through L.Rs. Nil 8.1 - (A) Rameshwar Prasad S/o Late Shri Dwarika Prasad Aged About 60 Years R/o Village Sothi, Tah. Akaltara, Distt Janjgir Champa (C.G.) 8.2-(B) Chintamani S/o Late Shri Dwarika Prasad Aged About 35 Years R/o Janjgir Champa (C.G.) Village Akaltari, Akaltara, Distt Tah. 8.3 - (C) Haripriya W/o Lavkumar Aged About 35 Years D/o Late Shri Dwarika Prasad, R/o Village Akaltari, Tah. Akaltara, Distt Janjgir Champa (C.G.) 9 - State Of Chhattisgarh Through District Collector, Janjgir-Champa ... Respondent(s) For Petitioners : Mr. Anurag Agrawal, Advocate For State/ Respondents No. 9 : Mr. Prateek Tiwari, P.L. Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 06/03/2025 1) The facts of the present case are that the petitioners/plaintiffs/decree- holders filed a civil suit (C.S. No. 57-A/77) for partition and possession of the suit property, particularly 1/3rd share against the defendants. In the civil suit, a preliminary decree was passed by the learned First Civil Judge Class-I, Bilaspur on 24.12.1981. An appeal was preferred by the defendants and the same was dismissed vide judgment and decree dated 31.03.1995. Thereafter, in the execution proceeding, the defendants moved an application under Section 54 read with Order 21 Rule 11(2) and 35 of CPC for the appointment of Commissioner for crystallizing the rights of the parties pursuant to the preliminary decree. The petitioners raised an objection to the effect that the application 3 moved by the defendants for appointment of Commissioner is barred by limitation as the decree was passed way back in the year 1981 and the appeal was dismissed in the year 1995. It was also stated that earlier an execution proceeding was initiated and possession has already been handed over. The learned executing court vide its judgment and decree dated 12.07.2024 allowed the application so moved by the defendants and appointed a commissioner for the partition of the suit property. 2) Learned counsel appearing on behalf of petitioners argues that the application moved by the defendants for appointment of commissioner was barred by limitation as the decree was passed on 24.12.1981 and the same was affirmed by the appellate Court on 31.03.1995. He further argues that in the execution proceeding which was initiated in the year 1995, it was observed that there was no need to appoint a commissioner. Thus, he prays that the order passed by the learned 3) 4) executing Court may be set-aside. On the other hand, learned State counsel opposes. Heard learned counsel for the parties and perused the documents available on the record. 5) From a perusal of the documents available on the record, it transpires that a suit was filed for partition and possession of the suit property by the petitioners/plaintiffs and a preliminary decree was passed on 24.12.1981. Thereafter, an appeal was preferred by the defendants but the same was dismissed vide judgment and decree dated 31.03.1995. Subsequently, the learned executing Court arrived at the conclusion that no application for execution was moved by the decree-holders. It was also observed that only a preliminary decree was passed and the final decree is yet to be passed. 4 6) The Hon’ble Supreme Court in the matter of Venu Vs. Ponnusamy Reddiar (dead) Through Legal Representatives & Anr., (2018) 15 SCC 254 regarding Section 54 and Order 20 Rule 18 and Order 26 Rule 13 of CPC has held that till the partition is carried out and the final decree is passed, there is no question of any limitation running against the right to claim partition as per the preliminary decree. Even when the application is filed seeking the appointment of Commissioner, no limitation is prescribed for this purpose, as such, it would not be barred by limitation, lis continues till the preliminary decree culminates into the final decree. The relevant paras 3 and 7 are reproduced herein below:- 3. In our opinion a preliminary decree for partition crystallises the rights of parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings. Till partition is carried out and final decree is passed, there is no question of any limitation running against right to claim partition as per preliminary decree. Even when application is filed seeking appointment of Commissioner, no limitation is prescribed for this purpose, as such, it would not be barred by limitation, lis continues till preliminary decree culminates into final decree. 7. In the instant case, the other ground which was taken by the appellant with respect to the preliminary decree being worked out by way of compromise. However, the factum of compromises has not been found to be established. Thus there is no satisfaction of the preliminary decree which had been passed in the instant case. The decision in Varatharajulu Reddiar v. Venkatakrishna Reddiar is pertinent in this regard, in which it has been observed that in case parties had effected partition by metes and bounds as per the preliminary decree, it would not be necessary to undertake 5 the final decree proceedings but in the instant case, it has not been found to be established that parties have worked out their rights by mutual agreement. Thus the final decree has to be drawn in accordance with law. We appreciate the fairness with which the case has been argued by the learned counsel appearing for the appellant. 7) Taking into consideration the facts of the present case and the reasons assigned by the learned executing Court and further considering the law laid down by the Apex Court in the matter of Venu (supra), it can safely be held that a preliminary decree for partition crystallizes the rights of parties seeking partition to the extent declared and equities remain to be worked out in the final decree proceedings and till the final decree is passed, no question of limitation arises against the right to claim partition as per the preliminary decree. 8)
Decision
In view of the above, in the opinion of this Court, no case is made out for interference with the order impugned. Consequently, this petition fails and is hereby dismissed. No order as to cost(s). Sd/- (Rakesh Mohan Pandey) JUDGE Ajinkya