Division of property through only by collector - There is no limitation for applying final decree.

Citation

CDJ 2008 SC 1075

Bikoba Deora Gaikwad and others vs Hirabai Marutirao ghorgate and others

Head Note

Civil Procedure Code - Section 54 - Limitation Act, 1963 - Article 136, 137 - Whether an application for initiating a final decree proceedings in terms of Section 54 of the Code of Civil Procedure, 1908 would be governed by any provision contained in the Schedule appended to the Limitation Act - Article 136 would apply when an application for execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court is to be filed. An application for taking steps towards passing a final decree is not an execution application. The said provision, therefore, cannot have any application in respect thereof. Article 137 is a residuary provision which applies when no period of limitation is provided elsewhere in the Division. An application asking the court to perform its duty in terms of Section 54 of the Code can be filed at any point of time in a case where a right to apply accrues in a decree holder. Therefore, no period of limitation is to be prescribed as there is none - Articles 136 and 137 of the Limitation Act, 1963 will have no application. Even otherwise, the contention of the appellants is wholly unsustainable. Such a contention had been raised even in the earlier objections. They were rejected. The appeals preferred there against have also been dismissed. In that view of the matter, the appellants could not have agitated the same issue by filing another objection - There is no merit in this appeal, which is dismissed accordingly with costs.

Para 14

Limitation Act, 1963 - Article 136, Article 137 - Civil Procedure Code - Section 54 - Whether an application for initiating a final decree proceedings in terms of Section 54 of the Code of Civil Procedure, 1908 would be governed by any provision contained in the Schedule appended to the Limitation Act - Article 136 would apply when an application for execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court is to be filed. An application for taking steps towards passing a final decree is not an execution application. The said provision, therefore, cannot have any application in respect thereof. Article 137 is a residuary provision which applies when no period of limitation is provided elsewhere in the Division. An application asking the court to perform its duty in terms of Section 54 of the Code can be filed at any point of time in a case where a right to apply accrues in a decree holder. Therefore, no period of limitation is to be prescribed as there is none - Articles 136 and 137 of the Limitation Act, 1963 will have no application. Even otherwise, the contention of the appellants is wholly unsustainable. Such a contention had been raised even in the earlier objections. They were rejected. The appeals preferred there against have also been dismissed. In that view of the matter, the appellants could not have agitated the same issue by filing another objection - There is no merit in this appeal, which is dismissed accordingly with costs.

Para 14

Cases Referred:
1. Ramanathan Chetty v. Alagappa Chetty & ors. I.L.R 53 Madras 378
2. Venkata Reddy & ors. v. Pethi Reddy AIR 1963 SC 992
3. Shankar Balwant Lokhande (Dead) by LRs. v. Chandrakant Shankar Lokhande & Anr. (1995) 3 SCC 413
4. Hasham Abbas Sayyad v. Usman Abbas Sayyad and ors. (2007) 2 SCC 355

Comparative Citations:
2008 (8) SCC 198, 2008 (2) KLT 1016, 2008 (5) MLJ 1388, 2008 (2) TLNJ(Civil) 462, 2008 (4) ALT 51, 2008 (4) SCJ 1003, 2008 (9) SCR 1038, 2008 (8) Scale 692, 2008 (11) JT 57, 2008 (7) SLT 577, 2008 (72) ALLLR 191, 2008 (4) ALD 40, 2009 AIR(SC) 454, 2008 AIR(SCW) 4264, 2009 (1) MHLJ 582, 2008 (4) MPHT 518, 209 (1) WBLR 50, 2008 (4) Supreme 137, 2008 (4) BCR 16, 2008 (2) RAJLW 1780, 2008 (4) AWC 3449