Trial Courts Should Suo Motu Initiate Final Decree Proceedings After Passing Preliminary Decree – Supreme Court
In a judgment that disposed of a civil appeal that arose from a property partition case, a Supreme Court Bench comprising Justice S Abdul Nazeer and Justice Vikram Nath directed the Trial Courts dealing with partition suits to proceed suo motu with the case soon after passing the preliminary decree.
The Court in this case had also held that presumption has to be drawn in favor of the wedlock in case of long cohabitation between a man and woman living together for long years as husband and wife. (Read Report)
In this case, the Supreme Court noted that the Trial Court had adjourned the suit sine die after passing the preliminary decree, with liberty to the parties to apply for final decree proceedings.
Therefore, the Bench deemed it necessary to address the concerning trend of delay in drawing up the final decrees under Rule 18 of Order XX of the CPC, which deals with decrees in suits for partition or separate possession of a share therein.
The Court shed light on the distinction between a preliminary decree and a final decree and said 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."
Relying on the judgments in the cases of Shub Karan Bubna v. Sita Saran Bubna and Bimal Kumar and Another v. Shakuntala Debi and Others, the Court clarified that the mere passing of a preliminary decree does not indicate that the suit is disposed of.
The Court also noted that there is no limitation for initiating final decree proceedings, while also opining that "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 proceedings 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."
The Supreme Court passed directions to the Trial Courts, by holding "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 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 proceedings. 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."
The Supreme Court passed an order to circulate the directions passed to the Trial Courts.