SUPREME COURT OF INDIA
Hasham Abbas Sayyad
Vs
Usman Abbas Sayyad and Others
Appeal (Civil) 5721 of 2006 (Arising Out of Slp (Civil) No.15035 of 2006)
(S. B. Sinha and Markandeya Katju, JJ)
12.12.2006
S. B. SINHA J
Leave granted.
Appellant, Respondent No.1 and Respondent No.2 are brothers. A suit for
partition was filed by Respondent No.1. A preliminary decree was passed on
16.03.1999. An application purported to be a Special Darkhast was filed by him
on 29.11.1999. An Advocate Commissioner was appointed. He was of the opinion
that the property was impartible. A proposal was mooted that the property be
put on sale in between the co- sharers. Appellant accepted the Commissioner's
report. He however filed an application for putting the said suit property on
auction sale and for equal distribution of the proceeds thereof amongst the
co-sharers. An objection to the report of the said Advocate Commissioner was
filed by the appellant. The court allowed the appellant to appoint an architect
at his own cost. He, however, failed to comply with the said order. A sale
proclamation was issued. The appellant expressed his intention to buy the said
property at the valuation made by the Government Valuer. A valuation report was
filed by the appellant on 04.05.2005 against which Respondent No.1 filed an
objection. The appellant was called upon to deposit 2/3rd of the amount stated
in the valuation report. He failed to do so. On or about 21.11.2005, he filed
an application expressing his willingness to deposit shares of Respondent Nos.
1 and 2. He also sought for permission to deposit an amount of Rs.2.5 lakhs. By
an order dated 22.11.2005, the Trial Court held that since the property was put
on auction sale, the highest bid would be treated to be the best price of the
suit property and there was no need for appointment of any valuer to ascertain
the market price thereof. Another objection was filed by the appellant stating
that in view of the facts and circumstances of the case, he should be allowed to
buy the shares of other so-sharers. The said application was rejected by an
order dated 14.12.2005. By an order dated 15.04.2006, the learned Trial Judge
held that it was not necessary to initiate a final decree proceeding and the
said purported Special Darkhast filed by Respondent No.1 was treated to be an
application therefor. A writ petition filed by the appellant was dismissed by
the High Court by reason of the impugned order.
The short question which, inter alia, arises for consideration is as to whether
the property in suit could be put on auction sale without initiating a formal
final decree proceeding.
"Decree" has been defined in Section 2(2) of the Code Of Civil Procedure, 1908 to mean :
"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 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;"
We may also notice Section 54 of the Code Of Civil Procedure,
1908 which is in the following terms :
"54. Partition of estate or separation of share.- Where the decree is
for the partition of an undivided estate assessed to the payment of revenue to
the Government, or for the separate possession of a share of such an estate the
partition of the estate or the separation of the share shall be made by the
Collector or any gazetted subordinate of the Collector deputed by him in this
behalf, in accordance with the law (if any) for the time being in force
relating to the partition, or the separate possession of shares, of such
estates."
Order XX of the Code of Civil Procedure provides as to when a judgment is said
to be pronounced. Rule 7 thereof provides that a decree although prepared at a
later date shall relate back to the date of the judgment. A Civil Court, in a
suit for partition, may pass a preliminary decree in terms of Order XX Rule 18
of the Code Of Civil Procedure, 1908, which reads as under :
"18. Decree in suit for partition of property or separate possession of
a share therein.- Where the Court passes a decree for the partition of property
or for the separate possession of a share therein, then, -
(1) if in so far as the decree relates to an estate assessed to the payment of
revenue to the Government, the decree shall declare the rights of the several
parties interested in the property, but shall direct such partition or
separation to be made by the Collector, or any gazetted subordinate of the
Collector deputed by him in this behalf, in accordance with such declaration
and with the provisions of section 54.
(2) if and in so far as such decree relates to any other immoveable property or
to movable property, the Court may, if the partition or separation cannot be
conveniently made without further inquiry, pass a preliminary decree declaring
the rights of the several parties, interested in the property and giving such
further directions as may be required."
Preliminary decree declares the rights and liabilities of the parties. However,
in a given case a decree may be both preliminary and final.
There can be more than one final decrees. A decree may be partly preliminary
and partly final. [See Rachakonda Venkat Rao and Others v. R. Satya Bai (Dead)
by L.Rs. and Another
A final decree proceeding may be initiated at any point of time. No limitation
is provided therefor. However, what can be executed is a final decree, and not
a preliminary decree, unless and until final decree is a part of the
preliminary decree.
Order XXI of the Code of Civil Procedure, inter alia, provides that a property
can be put to sale only in execution of a decree.
Rules 13 and 14 of Order XXVI, which are also relevant for the purpose, read as
under :
"13. Commission to make partition of immovable property.- Where a
preliminary decree for partition has been passed, the Court may, in any case
not provided for by section 54, issue a commission to such person as it thinks
fit to make the partition or separation according to the rights as declared in such
decree
.
14. Procedure of Commissioner.- (1) The Commissioner shall, after such inquiry
as may be necessary, divide the property into as many shares as may be directed
by the order under which the commission was issued, and shall allot such shares
to the parties, and may, if authorized thereto by the said order, award sums to
be p-aid for the purpose of equalizing the value of the shares.
(2) The Commissioner shall then prepare and sign a report or the Commissioners
(where the commission was issued to more than one person and they cannot agree)
shall prepare and sign separate reports appointing the share of each party and
distinguishing each share (if so directed by the said order) by metes and
bounds. Such report or reports shall be annexed to the commission and
transmitted to the Court; and the Court, after hearing any objections which the
parties may make to the report or reports, shall confirm, vary or set aside the
same.
(3) Where the Court confirms or varies the report it shall pass a decree in accordance
with the same as confirmed or varied; but where the Court sets aside the report
or reports it shall either issue a new commission or make such other order as
it shall think it."
The question came up for consideration before this Court in Shankar Balwant
Lokhande (Dead) v. Chandrakant Shankar Lokhande and Another , wherein it
was opined :
"Both the decrees are in the same suit. Final decree may be said to
become 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 Code Of Civil Procedure,
1908. The ap-pealability of the decree will, therefore, not affect its
character as a final decree. The final decree merely carries into fulfilment
the preliminary decree."
Taking note of the fact that a final decree proceeding is required to be drawn
upon a stamped paper, it was observed :
"The crucial question for consideration is as to when the limitation
begins to run for filing an application to pass final decree on stamped papers.
There is no direct decision of this Court on this point. Therefore, after
hearing counsel at length, we reserve the judgment in the appeal and
independently made detailed examination. There is divergence of opinion in the
High Courts on this question."
We are not oblivious of the fact that a somewhat different view as regards
period of limitation provided under Article 136 of the Limitation
Act, 1963 was taken in W.B. Essential Commodities Supply Corpn. v.
Swadesh Agro Farming & Storage Pvt. Ltd. and Another 6, wherein, inter alia, it was held that the
aforementioned observations do not apply to a money decree.
In Hameed Joharan (Dead) and Others v. Abdul Salam (Dead) by Lrs. and Others
37, Shankar Balwant Lokhande (supra) was
distinguished, inter alia, stating :
"23. Significantly, the contextual facts itself in Lokhande's case
(supra) has prompted this Court to pass the order as it has (noticed above) and
as would appear from the recording in the order to wit: "Therefore,
executing court cannot receive the preliminary decree unless final decree is
passed as envisaged under Order 20 Rule 18 (2)."
24. In that view of the matter, reliance on the decision of Lokhande's case
(supra) by Mr. Mani appearing for the appellants herein cannot thus but be said
to be totally misplaced more so by reason of the fact that the issue pertaining
to furnishing of stamp paper and subsequent engrossment of the final decree
thereon did not fall for consideration neither the observations contained in
the judgment could be said to be germane to the issue involved therein. The
factual score as noticed in paragraph 10 of the Report makes the situation
clear enough to indicate that the Court was not called upon to adjudicate the
issue as raised presently. The observations thus cannot, with due deference to
the learned Judge, but be termed to be an obiter dictum."
Yet again in Mool Chand and Others v. Dy. Director, Consolidation and Others
0, a distinction was drawn between a case
where an appeal against a preliminary decree was filed and a case where a
preliminary decree had not been appealed against.
Recently in Dr. Chiranji Lal (D) by LRs. v. Hari Das (D) by LRs. 2005
(10) SCC 746, it was held that the period of limitation for execution of a
partition decree would not be made contingent upon the engrossment of the decree
on the stamp paper.
We have referred to the aforementioned decisions to clear the air in relation
to one aspect of the matter, namely, although final decree may be required to
be duly stamped, or the same may not have anything to do for the purpose of
computing the period of limitation, the preliminary decree as such cannot be
put to execution.
Although in regard to the period of limitation in execution of the final decree
proceeding there are somewhat different views, but all decisions of this Court
clearly state that it is the final decree proceeding which would be executable
in nature. Without drawing a final decree proceeding, the court could not have
put the property on auction sale.
It is true that the house property was found to be an impartible one; but a
preliminary decree having been passed, the valuation thereof and final
allotment of the property could have been done only in a final decree
proceeding. Only when final allotments were made or a determination is made
that the property should be put on auction sale, a final decree in respect
thereof should have been passed. It is appealable. Only a final decree could be
put to execution.
A contention was raised that having regard to the conduct of the appellant, we
should not interfere, but the appellant herein has raised a jurisdictional
question. However, the appellant can be put to terms.
The core question is as to whether an order passed by a person lacking inherent
jurisdiction would be a nullity. It will be so. The principles of estoppel,
waiver and acquiescence or even res judicata which are procedural in nature
would have no application in a case where an order has been passed by the
Tribunal/Court which has no authority in that behalf. Any order passed by a
court without jurisdiction would be coram non judice being a nullity, the same
ordinarily should not be given effect to. [See Chief Justice of Andhra Pradesh
and Another v. L.V.A. Dikshitulu and Others - & MD Army Welfare
Housing Organisation v. Sumangal Services (P) Ltd. 2004 (8) SCC 619.
This aspect of the matter has recently been considered by this Court in Harshad
Chiman Lal Modi v. DLF Universal Ltd. and Another , in the following
terms :
"We are unable to uphold the contention. The jurisdiction of a court
may be classified into several categories. The important categories are (i)
Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii)
Jurisdiction over the subject matter. So far as territorial and pecuniary
jurisdictions are concerned, objection to such jurisdiction has to be taken at
the earliest possible opportunity and in any case at or before settlement of
issues. The law is well settled on the point that if such objection is not
taken at the earliest, it cannot be allowed to be taken at a subsequent stage.
Jurisdiction as to subject matter, however, is totally distinct and stands on a
different footing. Where a court has no jurisdiction over the subject matter of
the suit by reason of any limitation imposed by statute, charter or commission,
it cannot take up the cause or matter. An order passed by a court having no
jurisdiction is nullity." [See also Zila Sahakari Kendrya Bank
Maryadit v. Shahjadi Begum & Ors. 2006 (9) Scale 675 and Shahbad
Co-op. Sugar Mills Ltd. v. Special Secretary to Govt. of Haryana & Ors.
2006 (11) Scale 674 para 29]
We may, however hasten to add that a distinction must be made between a decree
passed by a court which has no territorial or pecuniary jurisdiction in the
light of Section 21 of the Code Of Civil Procedure, 1908; and a decree passed
by a court having no jurisdiction in regard to the subject matter of the suit.
Whereas in the former case, the appellate court may not interfere with the
decree unless prejudice is shown, ordinarily the second category of the cases would
be interfered with.
We are also not oblivious of some decisions of this Court where a property that
had been put to auction and despite setting aside of the decree, the court had
not interfered with. [See Bombay Dyeing and Mfg. Co. Ltd. Ltd. v. Bombay
Environmental Action Group and Others 2006 (3) SCC 459 para 329].
But in this case possession of the property has not been delivered to the
auction purchaser.
The suit property is a residential house. The auction sale was wholly illegal.
The auction purchaser can otherwise be compensated on monetary terms.
We, therefore, are of the opinion that in the peculiar facts and circumstances
of the case, and with a view to do complete justice to the parties, the
appellant should be directed to deposit a sum of Rs.18 lakhs within four weeks
from date before the learned Trial Judge, who shall immediately allow
Respondent Nos.1 and 2 to withdraw a sum of Rs.9 lakhs each towards their
shares in the property.
The appellant furthermore shall deposit such amount in the court within the
aforementioned period towards payment of interest by way of compensation @ 9%
p.a. from the date of deposit till the actual payment is made, which would be
payable to the auction purchaser, which in our opinion is just and reasonable.
The principle that such direction can be issued by this Court in exercise of
its jurisdiction under Article 142 of the Constitution of
India, 1950 would appear from a decision of this Court in Kishori Lal v.
Sales Officer, District Land Development Bank and Ors. 2006 (8) Scale
521, wherein it was directed:
"However, with a view to do complete justice between the parties, in
our considered opinion, the appellant should be direct to deposit the entire auction
money with interest thereupon @6% per annum. This order is being passed by us
under Article 142 of the Constitution Of India, 1950.
Such amount should be deposited within eight weeks from this date before
respondent No.1, Sales Officer. On such deposit being made, the auction shall
stand set aside and the possession of the property shall be restored to the
appellant herein. However, in the event the appellant fails and/or neglects to
deposit the said amount within the aforementioned period, these appeals shall
stand dismissed."
Following the said decision, herein also we would direct that in the event of
compliance of the aforementioned directions, the auction shall stand set aside
and the decree for partition shall stand satisfied. The appeal is allowed
subject to the aforementioned observations and directions. However, in the
facts and circumstances of the case, there shall be no order as to costs.