Partition decree finality and limitation: a blank decree form did not create a final decree, and commissioner appointment was not time-barred.
A partition decree is not final in law merely because a printed decree form has been signed if the material particulars remain blank and the substantive steps required for partition have not been completed. Where partition has not in fact been effected, the preliminary decree continues to operate. An application seeking appointment of a commissioner to carry out partition is not an ordinary discretionary request but a reminder to the court to perform a ministerial duty already imposed by the decree, and it therefore does not fall within Article 181 of the Limitation Schedule. On that reasoning, the application was not time-barred.
Issues: (i) Whether a final decree for partition had already come into existence so as to prevent revival of the preliminary decree. (ii) Whether the application for appointment of a commissioner to effect partition was barred by limitation under Article 181 of the Limitation Schedule.
Issue (i): Whether a final decree for partition had already come into existence so as to prevent revival of the preliminary decree.
Analysis: The decree form relied upon was left blank in material particulars and did not effectively bring about partition. A decree cannot be treated as final in law merely because a printed form was signed, where the substantive steps required by the preliminary decree had not been completed. Since partition had not yet been effected, no final decree had been drawn up in the eye of law.
Conclusion: No final decree had been validly made, and the preliminary decree remained operative.
Issue (ii): Whether the application for appointment of a commissioner to effect partition was barred by limitation under Article 181 of the Limitation Schedule.
Analysis: The application was not one seeking discretionary relief in the ordinary sense, but a reminder to the Court to perform a duty already cast upon it by the preliminary decree. An application asking the Court to do what it had no discretion to refuse, or to exercise a ministerial function, does not fall within Article 181.
Conclusion: The application was not barred by limitation.
Final Conclusion: The revision failed because no final decree had been legally drawn up and the request for appointment of a commissioner was not time-barred.
Ratio Decidendi: A purported decree does not become final unless it has legal efficacy as a decree, and an application seeking performance of a ministerial duty imposed by an existing decree is not governed by Article 181 of the Limitation Schedule.
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