Partition Suit After 90 Years Not Maintainable If Possession Not Delivered As Per Preliminary & Final Decrees: Karnataka High Court

The Karnataka High Court has held that filing a suit for property partition after a lapse of 90 years of passing a final decree is not maintainable if the possession has not been delivered as per the preliminary and final decrees. Justice H P Sandesh added that the same ought to have been enforced by filing an execution petition within the period of limitation. "Having referred Section 47 of CPC, it is clear that when there was a decree between the parties and relating to the execution, discharge of satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. In the case on hand, already there was a decree in respect of the Munireddy’s share and pleading of the plaintiff also clear that share has been determined and final decree also was drawn on 14.5.1928 and instead of executing the final decree by filing execution petition, a separate suit is filed before the Court and hence, it is clear that it is nothing but clever drafting of the plaint while filing the suit for the relief of seeking once again for partition."As such, the Court allowed the petition and the application filed by the petitioner under Order 7 Rule 11 of the Code of Civil Procedure (CPC) seeking to dismiss the suit filed for partition of the property.As per the suit, Nanjareddy had three sons, Ramareddy, Lingareddy and Munireddy. The said family possessed vast properties in and around Agara Village and in Bangalore City. There was a family partition amongst the members of the Nanjareddy Family, on the file of the Court of District Judge at Bangalore dated 8.10.1923, which culminated in Final Decree proceedings vide FDP dated 14.5.1928. The plaintiff falls in the branch of Munireddy who had three sons and the plaintiff is the grandson of Nanjunda S/o Munireddy. Late Munireddy got a definite share as per the judgment and decree and FDP proceedings and the said Munireddy died during the pendency of the suit leaving behind his three sons without getting an inch in suit schedule property towards his share of 1/3rd which was declared by the Court.It was said “There was a cordial relationship between the parties and possession was continued with Ramareddy and its members and bonafidely believed them and there was no room for suspicion and their behaviour also never raised any doubts in the minds of the plaintiffs’ family. But now they have declined to give a share. Hence, filed a suit for the relief of partition of 1/3rd legitimate share. The petitioner filed an application for rejection of plaint contending that the suit is barred by law. However, the trial court rejected the application holding that Section 47 of the CPC does not attract and also the suit is not barred by limitation. The plaintiff has sought relief of partition with respect to the property fallen to the share of Munireddy and hence the contention of the plaintiff that the suit is barred by law will not hold good. The plaint averments also reveal that partition among the legal heirs of deceased Munireddy has not been effected and the plaintiff being the legal heirs of deceased Munireddy is entitled to a share, hence there is a cause of action for the suit and rejected the application.The primary contention of the petitioner challenging the order of the trial court was that there was a decree of partition and preliminary decree was passed and a final decree was also passed, hence, no question of once again filing the suit for the relief of partition and according to the plaint averments itself is clear that already there was a partition and final decree was passed and once again cannot file any suit for the relief of partition and hence there is no any cause of action to file a suit for partition once again. Further, if physical possession was not delivered in terms of the preliminary decree and final decree and he has to seek for an order to execute the decree. The plaintiff knowing fully well that the decree has to be enforced within the time stipulation and the same is barred by law, once again filed the suit for the relief of partition. It was also said that the suit is barred by limitation and within 12 years ought to have filed the appropriate proceedings to enforce the decree and the same is not done.” Finally, it was contended that there is a bar to file a suit, only the executing Court can examine the issue involved between the parties and he cannot file a separate suit and under the provision of Section 47 of CPC, a separate suit is barred.Findings: On going through the averments made in the plaint the court said “There is a force in the contention of the petitioner’s counsel that physical possession is not delivered in terms of the judgment and decree, option is to seek for an order to execute the decree. But instead of executing the decree, filed one more suit for the relief of partition and hence, one more suit is barred by law only to enforce the decree by filing an execution petition.” Referring to the Apex court...

Partition Suit After 90 Years Not Maintainable If Possession Not Delivered As Per Preliminary & Final Decrees: Karnataka High Court

Mustafa Plumber

Execution petition within limitation period must, court said.

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