Case Note & Summary
The petitioners, who were plaintiffs in a partition suit (O.S.No.114/1990), filed a writ petition under Articles 226 and 227 of the Constitution of India challenging an order dated 27.11.2019 passed by the Senior Civil Judge and JMFC at Devanahalli in Misc.No.9/2009. The suit was for partition of joint family properties, and a compromise was entered into among the parties. However, the decree was not drawn up in terms of the compromise as required under Order XX Rule 18 of the Code of Civil Procedure, 1908 (CPC). The respondent-decree holders filed an execution petition (Misc.No.9/2009) seeking delivery of possession of certain properties. The trial court allowed the execution petition and ordered delivery of possession. The petitioners contended that the execution petition was not maintainable because no decree had been drawn up in accordance with law. The High Court examined the provisions of Order XX Rule 18 CPC, which mandates that in a partition suit, the decree shall specify the shares of the parties and the properties allotted to each. The court noted that the compromise decree merely recorded the terms of settlement but did not draw up a formal decree specifying the metes and bounds. Consequently, the execution petition was premature and without jurisdiction. The High Court quashed the impugned order and remanded the matter to the trial court for fresh consideration, directing that a proper decree be drawn up before any execution proceedings are entertained.
Headnote
A) Civil Procedure - Execution of Decree - Order XX Rule 18 CPC - Compromise Decree in Partition Suit - Requirement of Drawing Up Decree - The court held that in a partition suit, a decree must be drawn up in terms of the compromise, specifying the metes and bounds of the shares allotted to each party, failing which the decree is not executable. The execution petition filed without such a decree is liable to be dismissed. (Paras 1-10) B) Civil Procedure - Execution Proceedings - Order XXI Rule 11 CPC - Application for Execution - The court held that an application for execution must contain the particulars required under Order XXI Rule 11, including the number of the decree and the date of the decree. The absence of a drawn-up decree renders the execution application defective. (Paras 5-10) C) Civil Procedure - Inherent Powers - Section 151 CPC - Court's Power to Recall Orders - The court held that the trial court erred in allowing the execution petition and ordering delivery of possession without ensuring that a proper decree was drawn up. The High Court, in exercise of its supervisory jurisdiction under Article 227, quashed the order and remanded the matter for fresh consideration. (Paras 10-15)
Issue of Consideration
Whether an execution petition can be maintained when the decree in a partition suit has not been drawn up in terms of the compromise as required under Order XX Rule 18 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the writ petition, quashed the order dated 27.11.2019 passed by the Senior Civil Judge and JMFC at Devanahalli in Misc.No.9/2009, and remanded the matter to the trial court for fresh consideration. The court directed that a proper decree be drawn up in terms of the compromise as required under Order XX Rule 18 CPC before any execution proceedings are entertained.
Law Points
- Order XX Rule 18 CPC
- Order XXIII Rule 3 CPC
- Section 151 CPC
- Section 47 CPC
- Order XXI Rule 11 CPC
- Order XXI Rule 66 CPC
- Order XXI Rule 97 CPC
- Order XXI Rule 103 CPC
- Article 226 Constitution of India
- Article 227 Constitution of India
