Case Note & Summary
The petitioner, Smt. Cheekanda Pushparatna Chengappa, filed a suit (O.S.No.26/2010) for partition against the respondents, which was decreed on 01.10.2010, granting her a 1/3rd share in the suit schedule properties. Subsequently, she instituted Final Decree Proceedings (FDP No.6/2011) for passing of a final decree. During these proceedings, respondent Nos.1 and 2 filed I.A.No.3 under Section 151 of the Code of Civil Procedure, 1908 (CPC), seeking to reduce the petitioner's share to 1/9th and enhance their own shares to 4/9th each. The trial court allowed this application on 04.07.2014, modifying the shares determined in the preliminary decree. Aggrieved, the petitioner filed a writ petition under Article 227 of the Constitution of India before the High Court of Karnataka. The High Court examined whether the trial court had jurisdiction to alter the preliminary decree in final decree proceedings. It held that a preliminary decree, once passed and not appealed against, becomes final and conclusive regarding the shares of the parties. The court in final decree proceedings is only empowered to work out the shares as per the preliminary decree and cannot modify them. Allowing such modification would amount to reviewing or setting aside the preliminary decree without any appeal, which is impermissible. The High Court, therefore, quashed the impugned order dated 04.07.2014 and restored the shares as per the preliminary decree. The writ petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Final Decree Proceedings - Jurisdiction of Court - Modification of Preliminary Decree - Code of Civil Procedure, 1908, Section 151 - The trial court in final decree proceedings cannot alter or modify the shares allotted in a preliminary decree which has become final, as the preliminary decree is conclusive and can only be challenged by way of appeal. The court allowed an application under Section 151 CPC to reduce the plaintiff's share from 1/3rd to 1/9th and enhance the defendants' shares, which was held to be without jurisdiction. (Paras 1-4)
B) Civil Procedure - Preliminary Decree - Finality - Res Judicata - Code of Civil Procedure, 1908, Order 20 Rule 18, Section 2(2) - A preliminary decree determining the shares of parties is a final determination on that aspect and cannot be reopened in final decree proceedings. The High Court quashed the order passed in FDP No.6/2011, restoring the preliminary decree shares. (Paras 3-4)
Issue of Consideration
Whether the trial court in final decree proceedings (FDP) can modify the shares allotted in a preliminary decree without an appeal against the preliminary decree.
Final Decision
The High Court allowed the writ petition, quashed the order dated 04.07.2014 passed on I.A.No.3 in FDP No.6/2011, and restored the shares as per the preliminary decree dated 01.10.2010 in O.S.No.26/2010. No order as to costs.
Law Points
- Jurisdiction of final decree proceedings
- Modification of preliminary decree
- Section 151 CPC
- Res judicata
- Finality of preliminary decree
Case Details
2015 LawText (KAR) (09) 38
Writ Petition No.38461 of 2014 (GM-CPC)
C.M. Poonacha for petitioner, S.R. Sreeprasad for respondents 1 and 2
Smt. Cheekanda Pushparatna Chengappa
Mr. Kodandera K Sudhakar, Mrs. Kodandera Preetha Sudhakar, Mrs. Kodandera Radha
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging an order passed in final decree proceedings modifying the shares allotted in a preliminary decree.
Remedy Sought
Quashing of the order dated 04.07.2014 passed on I.A.No.3 in FDP No.6/2011 by the Senior Civil Judge & JMFC, Virajpet.
Filing Reason
The trial court allowed an application under Section 151 CPC to reduce the petitioner's share from 1/3rd to 1/9th and enhance the defendants' shares, which the petitioner contended was without jurisdiction as the preliminary decree had become final.
Previous Decisions
The suit O.S.No.26/2010 was decreed on 01.10.2010 granting the petitioner 1/3rd share. The petitioner filed FDP No.6/2011 for final decree. The trial court allowed I.A.No.3 on 04.07.2014 modifying the shares.
Issues
Whether the trial court in final decree proceedings can modify the shares allotted in a preliminary decree without an appeal against the preliminary decree.
Submissions/Arguments
Petitioner argued that the trial court had no jurisdiction to modify the preliminary decree in final decree proceedings as the preliminary decree had become final and could only be challenged by way of appeal.
Respondents argued that the application under Section 151 CPC was maintainable and the court could correct the shares based on the evidence.
Ratio Decidendi
A preliminary decree determining the shares of parties in a partition suit is final and conclusive. The court in final decree proceedings cannot modify or alter the shares allotted in the preliminary decree, as it would amount to reviewing or setting aside the preliminary decree without an appeal. Such modification is without jurisdiction.
Judgment Excerpts
The petitioner instituted F.D.P.No.6/2011 for passing of a final decree. The respondent Nos.1 and 2 filed I.A.No.3, under Section 151 CPC, to reduce and allot 1/9th share to the plaintiff and further enhance and allot 4/9th share, out of the suit schedule properties, to the first defendant.
Overruling the objections filed by the plaintiff, I.A.No.3 was allowed and the share allotted to the plaintiff in the preliminary decree was reduced to 1/9th and the shares of the defendant Nos.1 and 3 was enhanced to 4/9th each, vide order dated 04.07.2014.
The trial court in final decree proceedings cannot modify the shares allotted in the preliminary decree which has become final.
Procedural History
The petitioner filed O.S.No.26/2010 for partition, which was decreed on 01.10.2010 granting 1/3rd share. She then filed FDP No.6/2011 for final decree. During FDP, respondents filed I.A.No.3 under Section 151 CPC to modify shares, which was allowed on 04.07.2014. The petitioner challenged this order by filing Writ Petition No.38461/2014 under Article 227 of the Constitution of India before the High Court of Karnataka.
Acts & Sections
- Code of Civil Procedure, 1908: Section 151
- Constitution of India: Article 227
