Case Note & Summary
The petitioners, who were defendants in a partition suit, filed a writ petition challenging orders passed by the Joint Civil Judge, Senior Division, Sangamner, in execution proceedings (Darkhast No.64/2015). The suit, Regular Civil Suit No.212/2012, was filed by respondent Nos. 1 to 3 against the petitioners and others for partition and injunction. The suit was decreed on 16/02/2015, declaring that the plaintiffs and respondent Nos. 1 to 6 had a 1/2 share in the suit property. The decree directed that after appointing a commissioner, partition shall be effected as per the share determined. The petitioners contended that the decree was a preliminary decree and that execution proceedings were initiated without a final decree being passed, rendering the execution non est. The respondents argued that the decree was final and executable. The court analyzed the nature of the decree and held that it was a preliminary decree as it required further proceedings for actual partition. Relying on Order 20 Rule 18 CPC, the court held that only a final decree is executable. The execution of a preliminary decree without a final decree is a nullity. The court allowed the writ petition, set aside the execution proceedings, and directed the trial court to proceed with the final decree proceedings.
Headnote
A) Civil Procedure - Execution of Decree - Preliminary Decree vs Final Decree - Order 20 Rule 18, Code of Civil Procedure, 1908 - The court considered whether a preliminary decree in a partition suit is executable without a final decree. Held that only a final decree is executable; execution of a preliminary decree is a nullity. The court allowed the writ petition and set aside the execution proceedings. (Paras 1-10)
Issue of Consideration
Whether a preliminary decree in a partition suit can be executed without a final decree being passed.
Final Decision
The court allowed the writ petition, set aside the execution proceedings, and directed the trial court to proceed with the final decree proceedings.
Law Points
- Execution of preliminary decree without final decree is non est
- Only final decree is executable under Order 20 Rule 18 CPC
- Preliminary decree cannot be executed
Case Details
2022 LawText (BOM) (01) 6
Writ Petition No.2874 of 2019
Mr. S.S. Dixit for petitioners, Mr. K.N. Shermale for respondent Nos. 1 to 3
Kusum w/o Arvind Dhole and Dhananjay s/o Arvind Dhole
Malti w/o Suresh Dhole and others
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Nature of Litigation
Writ petition challenging orders in execution proceedings of a partition suit.
Remedy Sought
Petitioners sought to set aside execution proceedings on the ground that only a preliminary decree was passed and no final decree was drawn, making execution non est.
Filing Reason
The petitioners were aggrieved by the orders passed by the Joint Civil Judge, Senior Division, Sangamner, below Exhs.23 and 28 in execution proceedings (Darkhast No.64/2015), which sought to execute a preliminary decree without a final decree.
Previous Decisions
Regular Civil Suit No.212/2012 was decreed on 16/02/2015, declaring plaintiffs and respondent Nos. 1 to 6 have 1/2 share in suit property, and directing partition by commissioner. This was a preliminary decree.
Issues
Whether a preliminary decree in a partition suit is executable without a final decree being passed.
Submissions/Arguments
Petitioners argued that the decree was preliminary and not executable; execution of a preliminary decree without final decree is non est.
Respondents argued that the decree was final and executable.
Ratio Decidendi
A preliminary decree in a partition suit is not executable; only a final decree is executable under Order 20 Rule 18 CPC. Execution of a preliminary decree without a final decree is a nullity.
Judgment Excerpts
The present petition is filed by the petitioners, being aggrieved by orders passed by the Jt.Civil Judge, Sr.Division Sangamner below Exhs.23 and 28 in the execution proceedings and it is prayed that the order is (Darkhast No.64/2015) is nonest, since what is executable is a final decree and not a preliminary decree.
Procedural History
Respondent Nos. 1 to 3 filed Regular Civil Suit No.212/2012 for partition and injunction. The suit was decreed on 16/02/2015 as a preliminary decree. Execution proceedings (Darkhast No.64/2015) were initiated. Petitioners filed writ petition challenging orders below Exhs.23 and 28 in the execution proceedings.
Acts & Sections
- Code of Civil Procedure, 1908: Order 20 Rule 18
