Madhya Pradesh High Court
Vijay Sood vs Kanak Devi on 29 March, 2016
Author: Rohit Arya
Bench: Rohit Arya
1 Civil Revision No.105/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
Civil Revision No.105/2015
Petitioner....... Vijay Sood
Vs.
Respondents..... Kanak Devi and others
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Shri N.K.Gupta, Sr. Advocate with Shri Sanjay Sharma,
Advocate for the petitioner.
Shri V.K.Bhardwaj, Sr. Advocate with Shri Anoop Gupta,
Advocate for the respondent No.1.
Date of hearing : 01/02/2016
Date of order : 29/03/2016
Whether approved for reporting : Yes
ORDER
(29/03/2016) Rohit Arya, J This civil revision under section 115 CPC at the instance of the judgment-debtor, Vijay Sood s/o late J.N.Sood against the order dated 30/11/2015 whereby the trial Court has overruled the objections raised against execution of the decree dated 27/02/2015 in civil suit No.200A/2014 and has posted the case for further orders on application under Order XXVI rule 13 & 14 read with section 151 CPC filed by the decree-holder and Order XXI rule 26 read with section 151 CPC filed by the judgment-debtor No.2, on the next date of hearing mentioned thereunder.
2. The case in hand has a chequered history. Facts relevant and necessary for disposal of this writ petition are to the effect; suit house No.2/120 new No.23/61is situated in Chick Santer Morar, District Gwalior; is self acquired property of Late Durgaprasad. Genealogy of Durgaprasad is as follows:-
2 Civil Revision No.105/2015Durgaprasad, died in the year 1955 Bhagwati (dead) Jainarayan (dead) Shyamwati (dead) Satyanarayan year 2008 year 2000 year 2004 (dead) year 1998 Mahendra (son) Anand (son) Vimla Vijaysood Veenasood Nanda (wife) dead (son) (daughter) (daughter) Kamla Ashok Arun Meena Karuna Rakesh (wife) (son) (son) (daughter) (daughter) (son)
3. Jainarayan had filed suit for declaration and injunction vide civil suit No.36A/1991 that he is exclusive owner of the suit house; on the premise that there was a memorandum partition drawn by late Durgaprasad between jainarayan and his brother Satyanarayan, on 25/02/1949. The trial Court dismissed the suit vide the judgment and decree dated 15/10/1992.
4. On appeal in F.A.No.6 of 1993 this Court vide judgment and decree dated 24/02/1999 affirmed the finding of the trial Court that plaintiff, Jainarayan was not the exclusive owner of the suit property. Further, held that after death of Durgaprasad, the suit property remained in joint possession of the plaintiff and defendant No.1. Plaintiff was held entitled for declaration that he has half share in the joint property. Defendant No.5 being purchaser of the joint family property from Satyanarayan was not held entitled to secure possession of the property unless a suit for partition and possession of the share is filed by him and his share is carved out. Consequently, the decree passed by the trial Court was modified as follows:
"13. The decree is modified to the extent that 3 Civil Revision No.105/2015 defendant no.5 shall deliver possession of the property to the plaintiff as the property is not yet divided and unless property is divided and share is determined, the purchaser being stranger to joint family cannot secure possession of the property. The decree of the trial Court to that extent is modified and it is directed that defendant no.5 shall deliver possession of the property possessed by her to the plaintiff."
5. The aforesaid judgment and decree passed in the first appeal No.6/1993 (supra) by this Court was subject-matter of Special Leave Petition No.5696/2007, later on converted into civil appeal No.6548/2014 (Vijay Sood and others Vs. Kanak Devi and others). The Hon'ble Supreme Court dismissed the appeal on 15/07/2014.
6. Thereafter, civil suit No.200A/2014 was filed by Kanka Devi; subsequent purchaser (plaintiff - decree-holder; arrayed as respondent No.1 in this revision petition), for partition and possession and inter alia pleaded that Satyanarayan had executed an agreement to sell on 09/01/1982. At that time, vacant possession of 03 rooms was delivered but due to injunction suit filed by the predecessor-in-interest of defendant No.2, Jainarayan, the sale deed could not be executed. Therefore, upon vacation of the injunction order, sale deed was executed on 16/12/1985, i.e., half portion of the suit house marked with red ink. The suit was decreed by the trial Court vide judgment and decree dated 27/02/2015.
7. It is not out of place to mention that defendant No.2, Vijay Sood in the said suit had filed an application under Order VI rule 17 CPC seeking amendment for adding late Smt.Bhagwati and Smt. Shaymwati daughters of late Durgaprasad, as defendants. The application was dismissed by the trial Court. Being aggrieved thereby Writ Petition No.5309/2014 filed by defendant no.2 was withdrawn on 04/09/2014. Moreover, in the earlier suit the predecessor-in- interest of defendants no.1 to 4, Jainarayan had not contended that daughters of late Durgaprasad had any 4 Civil Revision No.105/2015 share in the suit property and was not made party, instead he claimed to be the exclusive owner of the suit property.
8. The efforts to scuttle progress of the suit did not stop here, and again abortive attempt was made by one Anand Sood having filed an application under Order I rule 10 CPC in the month of September, 2014 on the premise that he had come to know about pendency of the suit recently in some family function. He claimed to be the son of Shyamwati and grandson of late Durgaprasad, therefore, entitled for 1/4 th of the suit property, hence, entitled to be arrayed as defendant. The application was rejected by the trial Court vide order dated 01/10/2014. Being aggrieved thereby, W.P.No.6477/2014 was filed before this Court. A coordinate Bench of this Court vide order dated 07/11/2014 had remanded the matter back to the trial Court for decision on the application afresh for the reasons recorded in the order. Accordingly, the trial Court reconsidered the application and rejected the same by order dated 27/11/2014. Being aggrieved, W.P.No.7624/2014 was filed and the same was dismissed by this Court by a detailed order passed on 06/02/2015. Thereafter the suit was decided vide judgment and decree dated 27/02/2015. The trial Court has passed the decree in paragraphs 38 and 39 to the following effect:
38- mijksDr okn iz'u dh foospuk esa ;g Hkh fu"df"kZr gqvk gS fd oknh us t;ukjk;.k o lR;ukjk;.k ds e/; caVokjk gq, cx+Sj lR;ukjk;.k ls fookfnr edku dk vk/ks Hkh de va'kHkkx dz; fd;k bl dkj.k og fookfnr edku ds t;ukjk;.k o lR;ukjk;.k ds mRrjkf/kdkjh;ksa ds e/; caVokjk mijkar lR;ukjk;.k ds mRrjkf/kdkfj;ksa dks izkIr gksus okys Hkkx esa ls mlds }kjk dz; fd;s x;s Hkkx dh lhek rd fookfnr edku dk caVokjk djkdj mldk vkf/kiR; izkIr djus dh vf/kdkjh gS A bl fLFkfr esa ;g Hkh U;k;ksfpr gS fd t;ukjk;.k vkSj lR;ukjk;.k ds mRrjkf/kdkjh;ksa ds e/; caVokjk fd;s tkrs le; fdlh lR;ukjk;.k ds mRrjkf/kdkfj;ksa dks fookfnr edku ds iwoZ fn'kk dh vksj dk Hkkx rFkk t;ukjk;.k ds mRrjkf/kdkjh;ksa dks if'pe fn'kk dk Hkkx fn;k tk;A Qyr% okn vkaf'kd :i ls fuEukuqlkj t;if=r fd;k tkrk gS & 1& okni= ds lkFk layXu uD'ks esa nf'kZr fpd larj eqjkj Xokfy;j fLFkr fookfnr Hkou dzekad&23@61 dk t;ukjk;.k ds mRrjkf/kdkjh;ksa izfroknh dz-&1 yxk;r 4 rFkk lR;ukjk;.k ds fof/kd mRrjkf/kdkjh;ksa izfroknh dz-&5 yxk;r 10 ds e/; 1@2&1@2 va'kHkkx esa foHkktu fd;k tk;A 5 Civil Revision No.105/2015 2& foHkktu fd;s tkrs le; lR;ukjk;k.k ds fof/kd mRrjkf/kdkjh;ksa dks fookfnr edku dk iwoZ fn'kk dh vksj dk Hkkx fn;k tk;A 3& mDrkuqlkj foHkktu mijkar oknh lR;ukjk;.k ds fof/kd mRrjkf/kdkjh;ksa dks izkIr gksus okys Hkkx esa ls mlds }kjk dz; fd;s x;s Hkkx dh lhek rd dk vkf/kiR; izfroknhx.k ls izkIr djsxhA 4& okn i= ds lkFk lyaXu uD'kk fMdzh dk va'k gksxkA 5& izfroknh dz-&2 viuk rFkk oknh dk okn O;; ogu djsxkA 6& vf/koDrk 'kqYd izekf.kr gksus ij vFkok lwph vuqlkj] tks Hkh de gks] tksMk tkosA 39-rnuqlkj izkjafHkd vkKfIr cuk;h tk;sA
9. Thereafter, decree-holder, Kanak Devi has filed an application under Order XXVI rule 13 & 14 read with section 151 CPC seeking partition of the suit property and apportionment of her share as detailed in the decree passed (supra).
10. The judgment-debtor/objector objected to the aforesaid application inter alia contending that decree prepared on 27/02/2015 is a preliminary decree, unless the preliminary decree is made a final decree, the same is unexecutable in law and, therefore, the same deserves to be dismissed. Reply thereto was filed by decree-holder inter alia contending that specific share and apportionment with directions have been finally determined. In fact, the decree so passed is not a preliminary decree, therefore, the same cannot be construed to be so for the purpose of Order XX rule 18 CPC and it is a final decree. In paragraph 10 of the application, the details of affected persons have been mentioned. Notices have also been issued and served. It is further contended that in the facts and circumstances of the case, there is no requirement of passing a final decree. It is not a case of partition of the suit property inter se between the parties, instead the trial Court has specifically ordered for carving out the area transferred to the decree-holder by notice of sale dated 16/12/1985 out of the share of the ownership of satyanarayan, on the eastern side of the suit property. Therefore, the decree was sought to be executed.
6 Civil Revision No.105/201511. The trial Court vide its order dated 24/08/2015 rejected the objection raised by the judgment-debtor/defendant No.2, Vijay Sood.
12. Being aggrieved thereby, civil revision No.69/2015 was preferred. This Court vide order dated 16/9/2015 after addressing upon the factual matrix, did not consider it proper to record the finding whether the decree in question is a preliminary or final decree and left the same to be decided by the executing court after hearing the parties on objections raised. The executing court while rejecting the objections has concluded that as directions surrounding the suit house and determination of part of the house to be partitioned are contained in the decree, therefore, though in the judgment it is stated to be a preliminary decree, but is liable for execution, therefore, called for the record for preparation of final decree and also consideration on objections under Order XXVI Rule 13 and 14 CPC by decree-holder and under Order XXI Rule 26 CPC by judgment-debtor.
13. Shri N.K. Gupta, learned senior counsel appearing for petitioner/ judgment-debtor while criticizing the impugned order has submitted that the trial court in para 39 of the judgment itself has clearly pronounced for preparation of preliminary decree, therefore, the preliminary decree passed in the suit for partition cannot be put to execution in execution proceedings and it is only after preparation of final decree, the same can be executed, as the preliminary decree in question has only declared rights of parties to be apportioned and as it is not a final decree, court is required to issue the commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree as provided for under Order XXVI Rule 13 CPC and then the commissioner shall after such enquiry as he may deem fit and necessary divide the property into as many shares as indicated in and as per the preliminary decree by meets and bounds, as provided for 7 Civil Revision No.105/2015 under Order XXVI Rule 14 CPC. Thereafter, such report shall be transmitted to the Court. The Court after hearing parties on objections shall confirm, vary or set aside the same, as provided for under Rule 14 (2) and thereafter the Court shall pass a decree in accordance with the same as confirmed or varied, as the case may be, or set aside the report and issue a new commission to make such order, as it thinks fit, as provided for under Order XXVI Rule 14 (3) CPC. The final decree, so passed, can be subject matter of execution proceedings under Order XXI Rule 18 CPC. Further learned counsel contends that the executing court cannot travel beyond the terms of the decree. The executing court has committed grave illegality having proceeded to execute the preliminary decree and further perpetuated the illegality by further directing for preparation of final decree. The whole exercise is ultra vires to the provisions as contained under Order XX Rule 18, Order XXVI Rule 14 and Order XXI Rule 18 CPC. Learned counsel refers to the judgments reported in Hasham Abbas Sayyad vs. Usman Abbas Sayyad and others, 2007 (2) SCC 355, Bashiruddin Khwaja Mohiuddin, v. Binraj Murlidhar Shop at Malkapur and others, AIR 1987 Bombay 235, Poonamchand v. Dhulibai, 1976 MPLJ SN 19, State of M.P. v. Mangilal Sharma, AIR 1998 SC 743 and Bhanwarlal Bhandari Vs. Universal Heavy Mechanical Lifting Enterprises, (1999) 1 SCC 558.
14. Per contra, Shri V.K. Bhardwaj, learned senior counsel appearing for respondent/decree-holder refers to the definition of "decree" as defined under Section 2 (2) CPC and contends that the term decree in its folds includes preliminary decree as well as final decree and it is the nature and tenor of the decree passed, which determines the character of a decree. If the Court conclusively determines the rights of the parties in the suit and the suit is completely disposed of, the same is final decree, however, if after 8 Civil Revision No.105/2015 determination of the rights of the parties further proceedings have to be taken before the suit can be completely disposed of by the court, it is a preliminary decree. In the instant case, the trial court has finally determined the shares of defendants no.1 to 4 LRs. of Jainarayan and defendants no.5 to 10 LRs. of Satyanarayan in the ratio of half-half. Half portion of the LRs. of Satyanarayan is to be carved out on the east side of the house and out of the said apportionment the area of house purchased by the decree-holder is to be further carved out and to that extent possession is to be delivered to the decree-holder. As such, not only the ratio of partition, but also direction of partition has also to have been specified, therefore, the court has conclusively determined the rights of the parties and in fact the suit stands disposed of. No further proceedings have to be taken before the Court. Hence, the executing court has not committed any illegality in passing the impugned order. Learned counsel relied upon the judgments reported in Madhava Menon v. Esthapanose and another, AIR 1952 Travancore-Cochin 428, Hansraj v. Gomti and others, 1996 JLJ 357 to bolster his submissions. Learned counsel further contends that the respondent/ decree-holder has purchased the suit property by a sale deed dated 16/12/1985. More than 30 years' period has passed by, till date he is unable to get the possession of the property. Labyrinth of adversarial prolonged process of coiled litigation has in fact and in effect frustrated all efforts so far made by him for procuring the possession of the property purchased as a bonafide purchaser. It is submitted that the present proceedings are only intended to delay in execution of the decree having declared crystallized rights of the respondent for delivery of possession. The executing court has not committed any illegality and, therefore, no interference is warranted and the revision deserves to be dismissed.
15. Heard counsel for the parties.
9 Civil Revision No.105/2015The entire controversy revolves around the word "decree" as defined under Section 2 (2) CPC and, therefore, it is considered apposite to quote section 2 CPC:-
(2) "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 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 2[* * *] section 144, but shall not include-
(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;
It is evident from a careful reading of the definition that "decree" has the following essential elements:-
(i) Complete process of adjudication.
(ii) Final determination of the rights of the parties qua the matter in controversy.
(iii)A formal declaration of such conclusive / determined rights so far as that Court is concerned.
The Hon'ble Supreme Court in the case of Parayya Allayya Hittalamani v. Sri Parayya Gurulingayya Poojari, 2008 (1) Civil Court Cases 172 (SC) has observed as under:-
"A decree is defined in section 2 (2) of the Code of Civil Procedure to mean the formal expression of an adjudication which, so far as regards, the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit. It may either be preliminary or final. It may be partly preliminary and partly be final. The Court with a 10 Civil Revision No.105/2015 view to determine whether an order passed by it is a decree or not must take into consideration the pleadings of the parties and the proceedings leading up to the passing of an order. The circumstances under which an order has been made would also be relevant."
The definition between the preliminary decree and final decree is also well known and settled by catena of decisions. In a preliminary decree, certain rights are conclusively determined and unless the preliminary decree is challenged in appeal the rights so determined becomes final and conclusive. As such, the same cannot be questioned in final decree. But, such declaration of rights and liabilities of the parties by way of preliminary decree becomes final if no further proceedings are required to be taken up by the court to work out the actual results, but when there is a scope for further enquiry to be conducted pursuant to the preliminary decree, the rights of the parties are finally determined upon such enquiry and a decree is passed in accordance with such final determination known as final decree. Both the decrees are in the same suit.
The Hon'ble Supreme Court in the case of Shankar Balwanti Lokhande (Dead) By Lrs Vs. Chandrakant Shankar Lokhande and another (1995) 3 SCC 413 while dealing with the scope of Order XX Rule 18 CPC in the matter of executability of a decree for partition has lucidly dealt with the nature of preliminary and final decree and the scope of jurisdiction of the executing court thereunder. Relevant paras thereof are reproduced below:-
"3. .......A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is final. Both the decrees are in the same suit. Final decree may be said to become 11 Civil Revision No.105/2015 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 appealability of the decree will, therefore, not affect its character as final decree. The final decree merely carries into fulfillment the preliminary decree.
8. It has been seen that after passing of preliminary decree for partition, the decree cannot be made effective without a final decree. The final decree made in favour of the first respondent is only partial to the extent of his 1/6th right without any demarcation or division of the properties. Until the rights in the final decree proceedings are worked out qua all and till a final decree in that behalf is made, there is no formal expression of the adjudication conclusively determining the rights of the parties with regard to the properties for partition in terms of the declaration of 1/6th and 5/6th shares of the first respondent and the appellants so as to entitle the party to make an application for execution of the final decree.
10. As found earlier, no executable final decree has been drawn working out the rights of the parties dividing the properties in terms of the shares declared in the pre- liminary decree. The preliminary decree had only declared the shares of the parties and properties were liable to be partitioned in accordance with those shares by a Com- missioner to be appointed in this behalf Admittedly, no Commissioner was appointed and no final decree had been passed relating to all."
The aforesaid judgment has been again followed by the Hon'ble Supreme Court in the case of Bhanwarlal Bhandari Vs. Universal Heavy Mechanical Lifting Enterprises (1999) 1 SCC 558 and Hasham Abbas Sayyad vs. Usman Abbas Sayyad and others, (2007) 2 SCC 355.
In the backdrop of aforesaid preposition of law, this Court examines factual matrix of the case to test the justifiability of the order impugned passed by the executing court. The suit for partition and possession vide civil suit No.200A/2014 was filed in the light of the observations of 12 Civil Revision No.105/2015 the coordinate Bench of this Court while deciding F.A. No.6/1993 on 24/2/1999. In the context of the nature of the suit and the relief claimed therein, the property was to be divided and shares were to be determined between brothers viz. Jainarayan and Satyanarayan. Thereafter, out of the share of Satyanarayan the area stated and defined in the sale deed dated 16/12/1985 was required to be apportioned in favour of the respondent/plaintiff-stranger. The terms of the decree quoted above clearly stipulate for division of property between heirs of Late Jainarayan and heirs of Late Satyanarayan in the ratio of half-half. The area falling on the east side shall be apportioned in favour of heirs of Satyanarayan and the area in the sale deed dated 16/12/1985 is to be separated and possession is to be delivered in favour of the plaintiff. Therefore, the trial court in para 39 has pronounced for preparation of preliminary decree. In the considered opinion of this Court, the trial court is justified having ordered so, as the nature of the decree passed unambiguously requires division of shares between the parties by meets and bounds and, therefore, the suit cannot be said to have been completely disposed of and the decree so passed can be said to be a formal expression of adjudication conclusively determining the rights of the parties leaving no scope for any controversy in the suit. Instead to give effect to the directives issued in the decree in question, the trial court is first required to appoint a commissioner, as provided for under Order XXVI Rule 13 CPC for division of shares of parties and apportionment of the area mentioned in the sale deed dated 16/1/1985 out of the share of LRs. of Late Satyanarayan by meets and bounds. It is only after completion of such exercise by the commissioner and preparation of a report thereon under Order XXVI Rule 14 CPC the Court is required to decide the objections of the parties on such report, if any, and take a decision either to confirm or vary with the report or set aside 13 Civil Revision No.105/2015 the same after consideration of the contentions so raised. Thereafter, the decree so passed by the trial court shall be the formal expression of adjudication of the rights of the parties conclusively determining their rights. Such final decree, so prepared, in the opinion of this Court, can be put to execution by taking recourse to Order XXI Rule 18 CPC.
The executing court has committed an illegality having ordered for execution of the preliminary decree in partition suit and further aggravated the illegality by proceeding to prepare a final decree, which is wholly without jurisdiction. Consequently, the impugned order is set aside.
However, considering the fact that litigation between the parties is going on for last 23 years and to secure the ends of justice it is directed that both the parties shall appear before the trial court on 11 th April, 2016 and the decree-holder shall be free to file an application for appointment of commissioner on the same day. Thereafter, the trial court shall pass necessary orders for appointment of commissioner calling for the report of the commissioner within fifteen days. Thereafter, upon decision on the objections, if any, the trial court shall pass a final decree within next two weeks.
(Rohit Arya) Judge 29-03-2016 b/-Arun* 14 Civil Revision No.105/2015 HIGH COURT OF MADHYA PRADESH, JABALPUR, BENCH AT GWALIOR Civil Revision No.105/2015 Petitioner....... Vijay Sood Vs. Respondents..... Kanak Devi and others ORDER post for 29/03/2016 (Rohit Arya) Judge 28/03/2016