Delay   in   initiating   final decree proceedings under Order XX Rule 18 of the Code of Civil Procedure, 1908

Delay   in   initiating   final decree proceedings under Order XX Rule 18 of the Code of Civil Procedure, 1908

Delay   in   initiating   final decree proceedings under Order XX Rule 18 of the Code of Civil Procedure, 1908

#CivilProcedureCode #O-22,R-18 #PreliminaryDecree #Execution #FinalDecree #Judiciary #CivilService #LawOptional #AllIndiaBarExamination2022




CIVIL APPEAL NO. NO(S). 6406­6407 OF 2010 Dated- 13-06-2022


Issue- Delay   in   initiating   final  decree  proceedings  under  Order XX Rule 18 of the  Code 

of Civil Procedure, 1908

Delay   in   initiating   final  decree  proceedings  under  Order XX Rule 18 of the 

Code of Civil Procedure, 1908

The Supreme Court deemed it necessary to address a concerning trend of delay

in drawing up the final decrees under Rule 18 of Order XX of the Code of Civil 

Procedure, 1908 (for short, ‘CPC’). This provision deals with decrees in suits for

partition or separate possession of share therein. It provides as under:

“18. Decree in suit for partition of property or separate possession of a share therein.­ Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,­

(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;

(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot   be conveniently  made  without   further   inquiry, pass a preliminary decree declaring the right of the several parties, interested in the property and giving such further directions as may be required.”

Sub section (2) of Section 2 defines the decree as under:

“(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation— A decree is preliminary when further proceedings have to be taken before the suit can   be  completely  disposed  of.   It   is  final   when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;”

It is clear from the above that a preliminary decree declares the rights or shares of the parties to the partition. 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. 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 further inquiry to be held and conducted pursuant to the directions made in preliminary decree and after the inquiry having been conducted and rights of the parties being finally determined, a final decree incorporating such determination needs to be drawn up.

Final decree proceedings can be initiated at any point of time. There is no limitation for initiating final decree proceedings.  Either of the parties to the suit can move an application for preparation of a final decree and, any of the defendants can also move application for the purpose.  By mere passing of a preliminary decree the suit is not disposed of.

Since there is no limitation for initiating final decree proceedings, the litigants tend to take their own sweet time for initiating final decree proceedings.  In some States, the courts after passing a preliminary decree adjourn the suit sine die with liberty to the parties for applying for final decree proceedings like the present case. In some other States, a fresh final decree proceedings have to be initiated under Order XX Rule 18.  However, this practice is to be discouraged as there is no point in declaring the rights of the parties in one proceeding and requiring initiation of separate proceedings for quantification and ascertainment of the relief. This will only delay the realization of the fruits of the decree.  This Court, in Shub Karan Bubna v. Sita Saran Bubna 9 (2009) 9 SCC 689, had pointed out the defects in the procedure in this regard and suggested for appropriate amendment to the CPC.  The discussion is in paragraphs 23 to 29 which are as under:

“A suggestion for debate and legislative action

23. The century old civil procedure contemplates judgments, decrees, preliminary   decrees   and   final   decrees and execution of decrees. They provide for a “pause” between a decree and execution. A “pause” has also developed by practice between a preliminary decree and a final decree. The “pause” is to enable the defendant to voluntarily comply with the decree or declaration contained in the preliminary decree. The ground reality is that defendants normally do not comply with decrees without the pursuance of an execution. In very few cases the defendants in a partition suit voluntarily divide the property on the passing of a preliminary decree. In very few cases, defendants in money suits pay the decretal amount as per the decrees. Consequently, it is necessary to go to the second stage, that is, levy of execution, or applications for final decree followed by levy of execution in almost all cases.

24. A litigant coming to court seeking relief is not interested in receiving a paper decree when he succeeds in establishing his case. What he wants is relief. If it is a suit for money, he wants the money. If it is a suit for property, he wants the property. He naturally wonders why when he files a suit for recovery of money, he should first engage a lawyer and obtain a decree and then again engage a lawyer and execute the decree. Similarly, when he files a suit for partition, he wonders why he has to first secure a preliminary decree, then file an application

and obtain a final decree and then file an execution to get the actual relief. The commonsensical query is: why not a continuous process? The litigant is perplexed as to why when a money decree is passed, the court does not fix the date for payment and if it is not paid, proceed with the execution; when a preliminary decree is passed in a partition suit, why the court does not forthwith fix a date for appointment of a Commissioner for division and make a final decree and deliver actual possession of his separated share. Why is it necessary for him to remind the court and approach the court at different stages?

25. Because of the artificial division of suits into preliminary decree proceedings, final decree proceedings and execution proceedings, many trial Judges tend to believe that adjudication of the right being the judicial function, they should concentrate on that part. Consequently, adequate importance is not given to the final decree proceedings and execution proceedings which are considered to be ministerial functions. The focus is on disposing of cases rather than ensuring that the litigant gets the relief. But the focus should not only be on early disposal of cases, but also on early and easy securement of relief for which   the   party   approaches   the   court.   Even   among lawyers, importance is given only to securing of a decree, not securing of relief. Many lawyers handle suits only till preliminary decree is made, then hand it over to their juniors to conduct the final decree proceedings and then give it to their clerks for conducting the execution proceedings.

26.  Many a time, a party exhausts his finances and energy by the time he secures the preliminary decree and has neither the capacity nor the energy to pursue the matter to get the final relief. As a consequence, we have found cases where a suit is decreed or a preliminary decree is granted within a year or two, the final decree proceeding and execution takes decades for completion. This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system. Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits.

27. In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to   get   the   relief   quickly.   This   requires   a   conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant.

28. We hope that the Law Commission and Parliament will bestow their attention on this issue and make appropriate   recommendations/amendments   so   that   the   suit will be a continuous process from the stage of its initiation to the stage of securing actual relief.

29. The present system involving a proceeding for declaration of the right, a separate proceeding for quantification or ascertainment of relief, and another separate proceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements. If there is a practice of assigning separate numbers for final decree proceedings, that should be avoided. Issuing fresh notices to the defendants at each stage should also be avoided. The Code of Civil Procedure should provide for a continuous and seamless process from the stage of filing of suit to the stage of getting relief.”

The Supreme Court opined that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu.  After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC.  The courts should not adjourn the matter sine die, as has been done in the instant case.  There is also no need to file a separate final decree proceeding. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn.

Therefore, it directed the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary   decree   for   partition   and   separate   possession   of   the property, suo motu and without requiring initiation of any separate proceedings. It further directed the Registry of this Court to forward a copy of this judgment to the Registrar Generals of all the High Courts who in turn are directed to circulate the directions contained in this judgment to the concerned Trial Courts in their respective States.