http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  5721 of 2006

PETITIONER: Hasham Abbas Sayyad

RESPONDENT: Usman Abbas Sayyad & Ors

DATE OF JUDGMENT: 12/12/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No.15035 of 2006]

S.B. SINHA, J :

       Leave granted.

       Appellant,  Respondent No.1 and  Respondent No.2 are brothers.  A  suit for partition was filed by Respondent No.1.   A preliminary decree was  passed on 16.03.1999.  An application purported to be a Special Darkhast  was filed by him on 29.11.1999.  An Advocate Commissioner was  appointed.  He was of the opinion that the property was impartible.  A  proposal was mooted that the property be put on sale in between the co- sharers.   Appellant accepted the Commissioner’s report.  He however filed  an application for putting the said suit property on auction sale and for equal  distribution of the proceeds thereof amongst the co-sharers.  An objection to  the report of the said Advocate Commissioner was filed by the appellant.   The court allowed the appellant to appoint an architect at his own cost.  He,  however, failed to comply with the said order.  A sale proclamation was  issued.  The appellant expressed his intention to buy the said property at the  valuation made by the Government Valuer.  A valuation report was filed by  the appellant on 04.05.2005 against which  Respondent No.1 filed an  objection.  The appellant was called upon to deposit 2/3rd of the amount  stated in the valuation report.  He failed to do so.  On or about 21.11.2005,  he filed an application expressing his willingness to deposit shares of  Respondent Nos. 1 and 2.   He also sought for permission to deposit an  amount of Rs.2.5 lakhs.  By an order dated 22.11.2005, the Trial Court held  that since the property was put on auction sale, the highest bid would be  treated to be the best price of the suit property and there was no need for  appointment of any valuer to ascertain the market price  thereof.  Another  objection was filed by the appellant stating that in view of the facts and  circumstances of the case,  he  should be allowed to buy the shares of other  so-sharers.  The said application was rejected by an order dated 14.12.2005.   By an order dated 15.04.2006, the learned Trial Judge held that it was not  necessary to initiate a final decree proceeding and the said purported Special  Darkhast filed by Respondent No.1 was treated to be an application therefor.    A writ petition filed by the appellant was dismissed by the High Court by  reason of the impugned order.

       The short question which, inter alia, arises for consideration is as to  whether the property in suit could be put on auction sale without initiating a  formal final decree proceeding.                                    "Decree" has been defined in Section 2(2) of the  Code of Civil  Procedure, 1908  to mean :

"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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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 \026

(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;"

       We may also notice Section 54 of the Code of Civil Procedure which  is in the following  terms :

"54. Partition of estate or separation of share.-  Where the decree is for the partition of an undivided  estate assessed to the payment of revenue to the  Government, or for the separate possession of a share of  such an estate the partition of the estate or the separation  of the share shall be made by the Collector or any  gazetted subordinate of the Collector deputed by him in  this behalf, in accordance with the law (if any) for the  time being in force relating to the partition, or the  separate possession of shares, of such estates."

       Order XX of the Code of Civil Procedure provides as to when a  judgment is said to be pronounced.  Rule 7 thereof provides that a decree  although prepared at a later date shall relate back to the date of the judgment.   A Civil Court, in a suit for partition, may pass a preliminary decree in terms  of Order XX Rule 18 of the Civil Procedure Code, which reads 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 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          immoveable 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 rights of the          several parties, interested in the property and          giving such further directions as may be required."

       Preliminary decree declares the rights and liabilities of the parties.   However, in a given case a decree may be both preliminary and final.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

       There can be more than one final decrees.  A decree may be partly  preliminary and partly final. [See Rachakonda Venkat Rao and Others v. R.  Satya Bai (Dead) by L.Rs. and Another \026 (2003) 7 SCC 452]  

       A final decree proceeding may be initiated at any point of time.  No  limitation is provided therefor.  However, what can be executed is a final  decree, and not a preliminary decree, unless and until final decree is a part of  the preliminary decree.   

       Order XXI of the Code of Civil Procedure, inter alia,  provides that a  property can be put to sale only in execution of a decree.

       Rules 13 and 14 of Order XXVI, which are also relevant for the  purpose, read as under :

"13.    Commission to make partition of immovable  property.- Where a preliminary decree for partition has  been passed, the Court may, in any case not provided for  by section 54, issue a commission to such person as it  thinks fit to make the partition or separation according to  the rights as declared in such decree.

14.     Procedure of Commissioner.- (1) The   Commissioner shall, after such inquiry as may be  necessary, divide the property into as many shares as  may be directed by the order under which the  commission was issued, and shall allot such shares to the  parties, and may, if authorized thereto by the said order,  award sums to be p-aid for the purpose of equalizing the  value of the shares.   

       (2) The Commissioner shall then prepare and sign  a report or the Commissioners (where the commission  was issued to more than one person and they cannot  agree) shall prepare and sign separate reports appointing  the share of each party and distinguishing each share (if  so directed by the said order) by metes and bounds.  Such  report or reports shall be annexed to the commission and  transmitted to the Court; and the Court, after hearing any  objections which the parties may make to the report or  reports, shall confirm, vary or set aside the same.

       (3)     Where the Court confirms or varies the  report it shall pass a decree in accordance with the same  as confirmed or varied; but where the Court sets aside the  report or reports it shall either issue a new commission or  make such other order as it shall think it."    

       The question came up for consideration before this Court in Shankar  Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande and Another  (1995) 3 SCC 413], wherein it was opined : "\005Both the decrees are in the same suit. Final decree  may be said to become final in two ways: (i) when the  time for appeal has expired without any appeal being  filed against the preliminary decree or the matter has  been decided by the highest court; (ii) when, as regards  the court passing the decree, the same stands completely  disposed of. It is in the latter sense the word "decree" is  used in Section 2(2) of CPC. The ap-pealability of the  decree will, therefore, not affect its character as a final  decree. The final decree merely carries into fulfilment the  preliminary decree."

       Taking note of the fact that a final decree proceeding is required to be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

drawn upon a stamped paper, it was observed :         "The crucial question for consideration is as to  when the limitation begins to run for filing an application  to pass final decree on stamped papers. There is no direct  decision of this Court on this point. Therefore, after  hearing counsel at length, we reserve the judgment in the  appeal and independently made detailed examination.  There is divergence of opinion in the High Courts on this  question."

       We are not oblivious of the fact that a somewhat different view as  regards period of limitation provided under Article 136 of the Limitation  Act, 1963 was taken in W.B. Essential Commodities Supply Corpn. v.  Swadesh Agro Farming & Storage Pvt. Ltd. and Another [(1999) 8 SCC  315], wherein, inter alia, it was held that the aforementioned observations do  not apply to a money decree.

       In Hameed Joharan (Dead) and Others v. Abdul Salam (Dead) by Lrs.  and Others [(2001) 7 SCC 573], Shankar Balwant Lokhande (supra)  was  distinguished, inter alia, stating :               "23. Significantly, the contextual facts itself in  Lokhande’s case (supra) has prompted this Court to pass  the order as it has (noticed above) and as would appear  from the recording in the order to wit: "Therefore,  executing court cannot receive the preliminary decree  unless final decree is passed as envisaged under Order 20  Rule 18 (2)." 24. In that view of the matter, reliance on the decision of  Lokhande’s case (supra) by Mr. Mani appearing for the  appellants herein cannot thus but be said to be totally  misplaced more so by reason of the fact that the issue  pertaining to furnishing of stamp paper and subsequent  engrossment of the final decree thereon did not fall for  consideration neither the observations contained in the  judgment could be said to be germane to the issue  involved therein. The factual score as noticed in  paragraph 10 of the Report makes the situation clear  enough to indicate that the Court was not called upon to  adjudicate the issue as raised presently. The observations  thus cannot, with due deference to the learned Judge, but  be termed to be an obiter dictum."

       Yet again in Mool Chand and Others v. Dy. Director, Consolidation  and Others [(1995) 5 SCC 631], a distinction was drawn between a case  where an appeal against a preliminary decree was filed and a case where a  preliminary decree had not been appealed against.   

       Recently in Dr. Chiranji Lal (D) by LRs. v. Hari Das (D) by LRs.  [(2005) 10 SCC 746], it was held that the period of limitation for execution  of a partition decree would not be made contingent upon the engrossment of  the decree on the stamp paper.   

       We have referred to the aforementioned decisions to clear the air in  relation to one aspect of the matter, namely, although final decree may be  required to be duly stamped,  or the same may not have anything to do for  the purpose of computing the period of limitation, the preliminary decree as  such cannot be  put to  execution.                     Although in regard to the period of limitation in execution of the final  decree proceeding there are somewhat different views, but all decisions of  this Court clearly state that it is the final decree proceeding which would be  executable in nature.  Without drawing a final decree proceeding, the court  could not have put the property on auction sale.   

       It is true that the house property was found  to be an impartible one;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

but a preliminary decree having been passed, the valuation thereof and final  allotment of the property could have been done only in a final decree  proceeding.  Only when final allotments were made or a determination is  made that the property should be put on auction sale, a final decree in  respect thereof should have been passed.  It is appealable.  Only a final  decree could be put to execution.   

       A contention was raised that having regard to the conduct of the  appellant, we should not interfere, but the appellant herein has raised a  jurisdictional question.  However, the appellant can be put to terms.  

        The core question is as to whether an order passed by a person  lacking inherent jurisdiction would be a nullity.  It will be so.  The principles  of estoppel, waiver and acquiescence or even res judicata which are  procedural in nature would have no application in a case where an order has  been passed by the Tribunal/Court which has no authority in that behalf.   Any order passed by a court without jurisdiction would be coram non judice  being a nullity, the same ordinarily should not be given effect to.  [See Chief  Justice of Andhra Pradesh and Another v. L.V.A. Dikshitulu and Others -  AIR 1979 SC 193 &  MD Army Welfare Housing Organisation v. Sumangal  Services (P) Ltd. (2004) 8 SCC 619].                

       This aspect of the matter has recently been considered by this Court in  Harshad Chiman Lal Modi v. DLF Universal Ltd. and Another [(2005) 7  SCC 791], in the following terms :         "We are unable to uphold the contention. The  jurisdiction of a court may be classified into several  categories. The important categories are (i) Territorial or  local jurisdiction; (ii) Pecuniary jurisdiction; and (iii)  Jurisdiction over the subject matter. So far as territorial  and pecuniary jurisdictions are concerned, objection to  such jurisdiction has to be taken at the earliest possible  opportunity and in any case at or before settlement of  issues. The law is well settled on the point that if such  objection is not taken at the earliest, it cannot be allowed  to be taken at a subsequent stage. Jurisdiction as to  subject matter, however, is totally distinct and stands on a  different footing. Where a court has no jurisdiction over  the subject matter of the suit by reason of any limitation  imposed by statute, charter or commission, it cannot take  up the cause or matter. An order passed by a court having  no jurisdiction is nullity." [See also Zila Sahakari Kendrya Bank Maryadit v. Shahjadi Begum & Ors. \026  2006 (9) SCALE 675 and Shahbad Co-op. Sugar Mills Ltd. v. Special  Secretary to Govt. of Haryana & Ors. \026 2006 (11) SCALE 674 \026 para 29]

       We may, however hasten  to add that a distinction must be made  between a decree passed by a court which has no territorial or pecuniary  jurisdiction in the light of Section 21 of the Code of Civil Procedure; and a  decree passed by a court having no jurisdiction in regard to the subject  matter of the suit.  Whereas in the former case, the appellate court may not  interfere with the decree unless prejudice is shown, ordinarily the second  category of the cases would be interfered with.

       We are also not oblivious of some decisions of this Court where a  property that had been put to auction and despite setting aside of the decree,  the court  had not interfered with. [See  Bombay Dyeing and Mfg. Co. Ltd.  Ltd. v. Bombay Environmental Action Group and Others  (2006) 3 SCC 459  \026 para 329].

       But in this case possession of the property has not been delivered to  the auction purchaser.

       The suit property is a residential house.  The auction sale was wholly  illegal.  The auction purchaser can otherwise be compensated on monetary

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

terms.

       We, therefore, are of the opinion that in the peculiar facts and  circumstances of the case,  and with a view to do complete justice to the  parties, the appellant should be directed to deposit a sum of Rs.18 lakhs  within four weeks from date before the learned Trial Judge, who shall  immediately allow Respondent Nos.1 and 2 to withdraw a sum of  Rs.9  lakhs each towards their shares in the property.   

       The appellant furthermore shall deposit such amount in the court  within the aforementioned period towards payment of interest by way of  compensation @ 9% p.a. from the date of deposit till the actual payment is  made, which would be payable to the auction purchaser, which in our  opinion is just and reasonable.  

       The principle that such direction can be issued by this Court in  exercise of its jurisdiction under Article 142 of the Constitution of India  would appear from a decision of this Court in Kishori Lal v. Sales Officer,  District Land Development Bank and Ors. [2006 (8) SCALE 521], wherein  it was directed :

"However, with a view to do complete justice  between the parties, in our considered opinion, the  appellant should be directed to deposit the entire auction  money with interest thereupon @6% per annum.  This  order is being passed by us under Article 142 of the  Constitution of India.  Such amount should be deposited  within eight weeks from this date before respondent  No.1, Sales Officer.  On such deposit being made, the  auction shall stand set aside and the possession of the  property shall be restored to the appellant herein.   However, in the event the appellant fails and/or neglects  to deposit the said amount within the aforementioned  period, these appeals shall stand dismissed."

Following the said decision, herein also we would direct that in the  event of compliance of the aforementioned directions, the auction shall stand   set aside and the decree for partition shall stand satisfied.  The appeal is  allowed subject to the aforementioned observations and directions.   However,  in the facts and circumstances of the case, there shall be no order as to costs.