Case Note & Summary
Background: The dispute pertained to properties being plots Nos. 32, 33 and 35 admeasuring 384 sq. yards in Wazir Pur, Kotla Mubarakpur, New Delhi. The appellant Mulk Raj was inducted into possession by the third respondent Smt. Vimla Devi. He filed a civil suit for injunction, and the trial court's injunction decree became final. Subsequently, the appellant and respondents No.1 and 2 each purchased one-third share in the property, leading to a partition suit No. 27/73. The preliminary decree was passed on September 24, 1974, and the final decree on May 22, 1980, entitling each of the three to one-third share. In the meantime, execution proceedings under Order 21 Rule 32(2) CPC were initiated for enforcement of mandatory injunction. The trial court ordered the respondents No.1 and 2 to be sent to civil prison and directed removal of their possession of the entire property with police assistance. The first appeal was dismissed. The High Court of Delhi, in Civil Revision No. 923/80, dismissed the revision under Section 115 CPC as barred by limitation but suo motu exercised power under Article 227 of the Constitution and set aside the execution court's order. Aggrieved, the appellant approached the Supreme Court. Legal issues: whether the appeals had become infructuous because of the final partition decree, and whether parties could pursue separate execution proceedings when a final decree had determined their shares. Arguments: Senior counsel for both sides submitted that the appeals had become infructuous in view of the final decree. The Supreme Court noted that the parties had accepted the final decree dividing the properties into one-third shares each and allowed it to become final. Court's analysis: The Court reasoned that once a final decree in partition had been passed and accepted, it was binding on all parties and superseded all earlier or pending proceedings relating to the same lands. The execution proceedings under Order 21 Rule 32(2) CPC were thus rendered infructuous. The Court did not examine the correctness of the High Court's exercise of power under Article 227, as the substantive rights were now governed by the final decree. Decision: The Supreme Court disposed of the appeals as infructuous, holding that the parties were bound by the final decree and the appellant was entitled to one-third share for possession. Any other proceedings in respect of lands covered by the final decree in suit No. 27/73 were directed to stand closed, and all parties were to enforce their rights only under that final decree.
Headnote
A) Civil Procedure - Execution and Final Decree - Binding Nature of Final Decree in Partition Suit - Code of Civil Procedure, 1908, Order 21 Rule 32(2) and Section 115 - Execution proceedings were initiated for mandatory injunction and trial court ordered civil prison and police assistance; a final decree in partition suit subsequently determined that the appellant and respondents No.1 and 2 each held one-third share. The Supreme Court observed that the parties accepted the final decree and it became final, making all other proceedings in respect of the lands covered by that decree infructuous. Held that the parties are bound by the final decree and the appellant is entitled to one-third share for possession; the appeals were disposed of as infructuous with direction that all other proceedings stand closed (Paras 1-2). B) Constitutional Law - Supervisory Jurisdiction - Article 227 - High Court's Suo Motu Power to Set Aside Execution Order - Constitution of India, Article 227 - The High Court dismissed a revision under Section 115 CPC as barred by limitation but suo motu set aside the execution court's order granting civil prison and police assistance. The Supreme Court did not decide the correctness of the High Court's exercise of power under Article 227 because the appeals had become infructuous due to the final decree. Held that in view of the final decree, no further adjudication on the execution proceedings was required (Paras 1-2).
Issue of Consideration
Whether the appeals arising from execution proceedings under Order 21 Rule 32(2) CPC became infructuous in view of the final decree passed in partition suit No. 27/73, and whether parties were bound to enforce their rights only under that final decree; also whether the High Court's suo motu exercise of power under Article 227 was sustainable.
Final Decision
The Supreme Court disposed of the appeals as infructuous. It held that the parties were bound by the final decree and the appellant was entitled to one-third share for possession. Any other proceedings in respect of lands covered by the final decree in suit No. 27/73 would stand closed, and all parties were to enforce their rights under the final decree only.
Law Points
- Final decree in partition suit is binding and supersedes all earlier interlocutory and execution proceedings
- parties must enforce rights under final decree
- execution proceedings under Order 21 Rule 32(2) of Code of Civil Procedure
- 1908 become infructuous upon final partition decree
- High Court may suo motu exercise supervisory jurisdiction under Article 227 of the Constitution when revision under Section 115 CPC is barred by limitation
