No Need To File Separate Final Decree Proceedings In Partition Suit ; Trial Courts Should Proceed Suo Motu Soon After Passing Preliminary Decree: Supreme Court

The Supreme Court has directed the Trial Courts dealing with partition suits to proceed suo motu with the case soon after passing the preliminary decree.

"We direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.", the bench comprising Justices S. Abdul Nazeer and Vikram Nath observed.

This direction was issued in a judgment disposing a civil appeal that arose out of a partition case as it noted that the Trial Court after passing preliminary decree adjourned the suit sine die with liberty to the parties for applying for final decree proceedings. In some other cases, a fresh final decree proceedings have to be initiated under Order XX Rule 18.

"This practice is to be discouraged as there is no point in declaring the rights of the parties in one proceedings and requiring initiation of separate proceedings for quantification and ascertainment of the relief. This will only delay the realization of the fruits of the decree", the court observed.

The bench made the following observations regarding the the distinction between preliminary and final decree:

A preliminary decree declares the rights or shares of the parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held and pursuant to the result of further inquiry, a final decree shall be passed. Thus, fundamentally, the distinction between preliminary and final decree is that:­ a preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in preliminary decree and after the inquiry having been conducted and rights of the parties being finally determined, a final decree incorporating such determination needs to be drawn up.

The court also noted that the final decree proceedings can be initiated at any point of time as there is no limitation for initiating final decree proceedings.

"Since there is no limitation for initiating final decree proceedings, the litigants tend to take their own sweet time for initiating final decree proceedings. In some States, the courts after passing a preliminary decree adjourn the suit sine die with liberty to the parties for applying for final decree proceedings like the present case. In some other States, a fresh final decree proceedings have to be initiated under Order XX Rule 18. However, this practice is to be discouraged as there is no point in declaring the rights of the parties in one proceedings and requiring initiation of separate proceedings for quantification and ascertainment of the relief. This will only delay the realization of the fruits of the decree."

While disposing the appeal, the court observed:

We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.

Case details

Kattukandi Edathil Krishnan vs Kattukandi Edathil Valsan |  2022 LiveLaw (SC) 549 | CA 6406­-6407 OF 2010 | 13 June 2022

Coram: Justices S. Abdul Nazeer and Vikram Nath

Counsel: Sr. Adv V. Chitambaresh for appellants, Sr. Adv R. Basant & Sr. Adv V. Giri for respondents

Headnotes

Code of Civil Procedure, 1908 ; Order XX Rule 18 - Partition suits - Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings - The courts should not adjourn the matter sine die. (Para 32-34)

Code of Civil Procedure, 1908 ; Order XX Rule 18 - Partition suits - The distinction between preliminary and final decree - A preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in preliminary decree and after the inquiry having been conducted and rights of the parties being finally determined, a final decree incorporating such determination needs to be drawn up. (Para 29-30)

Code of Civil Procedure, 1908 ; Order XX Rule 18 - Partition suits - Final decree proceedings can be initiated at any point of time. There is no limitation for initiating final decree proceedings. Either of the parties to the suit can move an application for preparation of  a final decree and, any of the defendants can also move application for the purpose. By mere passing of a preliminary decree the suit is not disposed of - Referred to Shub Karan Bubna v. Sita Saran Bubna (2009) 9 SCC 689 ; Bimal Kumar  and Another v. Shakuntala Debi (2012) 3 SCC 548. (Para 31)

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