Trial court can suo motu initiate final decree proceedings
In partition cases, the Supreme Court (SC) says that the trial court can suo motu initiate final decree proceedings, after drawing up the preliminary decree henceforth. This would bridge the inordinate delay between preliminary decree and final decree in many cases.
Existing practice in partition cases
The existing practice is that after drawing up the preliminary decree which sets the proportion of the share of each party, the court will have to wait for any of the parties to the preliminary decree to move the court to proceed with the final decree proceedings.
It is in the final decree, the actually partition which divides the property to each one of the sharers, takes place.
No limitation period in partition cases
Since there is no limitation period in between a preliminary decree and the final decree, the parties keep the case pending for long years together in many cases, without filing the application for final decree.
SC wanted to club both proceedings in 2009
In Shub Karan Bubna v Sita Saran Bubna & Ors [ 9 (2009) 9 SCC 689], the SC made some suggestion for debate and legislative action in paragraph 23 to 29 of the judgement so as to combine both the preliminary decree proceedings and the final decree proceedings into a single whole.
SC reiterates the suggestion to club both
The suggestion has again been made into a direction by the SC in Kattukandi Edathil Krishnan v Kattukandi Edathil Valsan case. The paragraph 33 of the judgement is as follows:
” 33. We are of the view 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 de cree, 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, we direct 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”.
SC wants all the trial courts receive the judgement
The SC directs that the Registry should forward a copy of the above said judgment to the Registrar Generals of all the High Courts who in turn are directed to circulate the directions contained in paragraph ‘33’ of the judgment to the concerned Trial Courts in their respective States.
