Supreme Court: In a pair of civil appeals arising out of prolonged execution proceedings in a partition suit, a Division Bench of K.V. Viswanathan and S.V.N. Bhatti, JJ., set aside the orders of the High Court of Madhya Pradesh which had effectively stalled the execution of a decree passed as far back as 13 April 2012. Describing the litigation as a “Comedy of Errors”, the Court held that the controversy regarding whether the decree was preliminary or final had to be determined from the substance and terms of the decree itself, and not merely from its nomenclature. The Court observed that the decree had already determined the parties’ shares, entitlement to possession, mesne profits, and the mode of effecting partition in the event division by metes and bounds was impossible, thereby rendering the insistence on a separate final decree “completely unwanted”.
The Court reiterated that, in appropriate circumstances, a decree in a partition suit may partake the character of both a preliminary and final decree, particularly where the rights of the parties and the mechanism for working out those rights stand conclusively determined. Holding that the High Court committed an “illegal exercise of jurisdiction” by terminating the execution proceedings solely on technical grounds, the Court restored the execution case and directed completion of the sale and apportionment process within 2 months, taking note of the appellant’s advanced age and prolonged ordeal in securing the fruits of the decree.
Background
The present civil appeals arise from the orders dated 27 July 2023 and 20 March 2025 passed by the High Court of Madhya Pradesh in Miscellaneous Petition No. 2005 of 2022 and Review Petition No. 947 of 2023 respectively, whereby the execution proceedings pending before the IInd Additional Judge, Jabalpur, in Civil Suit No. 7A of 2011 were effectively set aside. The dispute primarily concerns whether the decree dated 13 April 2012 passed in the partition suit was merely a preliminary decree or could itself be treated as a final decree capable of execution. The Supreme Court described the matter as a “comedy of errors”, highlighting the prolonged procedural complications faced by the decree-holder.
The appellant, Jennifer, and Peter Messias were married in 1980. In 1991, they jointly purchased Flat No. 101, Amba Apartment, Civil Lines, Jabalpur, from their combined income. Following judicial separation in 2003, later affirmed by the Supreme Court in 2004, Peter Messias continued in possession of the flat. Jennifer thereafter instituted Civil Suit No. 7A of 2011 seeking partition and separate possession of the property. On 13 April 2012, the trial court passed a preliminary decree declaring the respective shares of the parties.
Subsequently, Jennifer initiated execution proceedings seeking enforcement of the decree. However, the execution petition was dismissed on 7 August 2013, prompting her to file an application under Order 20 Rule 18, Civil Procedure Code, 1908 (CPC). During the pendency of the proceedings, Peter Messias died on 26 March 2014, and Leonard G. Lobo, claiming rights under a registered will dated 22 March 2014, was impleaded as his legal representative. The High Court, while dismissing the challenge to his impleadment in Civil Revision No. 47 of 2016, directed that the application under Order 20 Rule 18 CPC be treated as an interlocutory application in the pending suit rather than as a separate execution proceeding.
Pursuant thereto, the Executing Court appointed an Advocate Commissioner, whose report dated 17 April 2019 concluded that the flat, being a small residential unit, was incapable of partition by metes and bounds. Consequently, by order dated 5 July 2019, the Executing Court directed sale of the property through public auction in accordance with the terms of the decree. The respondent repeatedly challenged these steps before the High Court through various miscellaneous petitions, resulting in repeated interference with the execution process.
Thereafter, to safeguard pre-emptive rights under partition law, the Executing Court initiated an inter se bidding process between the parties. The respondent offered ₹12,81,181 for the appellant’s share, while the appellant submitted a higher bid of ₹13,60,000 for purchase of the respondent’s share. Before the process could attain finality, the respondent filed Miscellaneous Petition No. 2005 of 2022 seeking restraint on further execution proceedings. The High Court allowed the challenge, and the appellant’s subsequent review petition was dismissed on 20 March 2025, giving rise to the present civil appeals before the Supreme Court.
Analysis
The Supreme Court examined the scope of Section 2(2) CPC and Order 20 Rules 12 and 18 CPC concerning preliminary and final decrees in partition suits. Referring to the settled position of law in Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande, (1995) 3 SCC 413 and Bimal Kumar v. Shakuntala Debi, (2012) 3 SCC 548, the Court observed that the controversy was not to be resolved merely by the nomenclature of the decree, but by examining the substance and contents of the decree dated 13 April 2012 itself. The Court noted that the decree had conclusively determined the parties’ half shares in the subject property, granted the appellant entitlement to possession, awarded mesne profits at the rate of ₹1500 per month till possession, and further directed appointment of an Advocate Commissioner for division by metes and bounds, failing which the property was to be sold and sale proceeds apportioned between the parties.
The Court took note of the “foresight” of the trial court in incorporating within the decree itself the contingency mechanism for sale of the property in the event physical partition was not possible. It observed that the Advocate Commissioner’s report dated 17 April 2019 clearly stated that the flat could not be partitioned by metes and bounds, pursuant to which the Executing Court rightly proceeded with inter se bidding between the parties. However, the High Court interfered with the execution proceedings by treating the decree as merely preliminary and insisting upon a separate final decree before execution could proceed. The Supreme Court held that the High Court failed to juxtapose the actual terms of the decree and instead proceeded solely on its nomenclature, overlooking that, in certain circumstances, orders under the Partition Act may themselves constitute deemed decrees under Section 2(2) CPC.
Criticising the procedural course adopted in the matter, the Court remarked that despite the law laid down in Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, (2022) 16 SCC 71 that no separate application for final decree may be necessary, the appellant was nevertheless compelled to pursue one, terming the situation another instance of the “comedy of errors”. The Court held that the decree dated 17 April 2012 had already determined the parties’ entitlement, possession rights, mesne profits, and the mode for effectuating partition through sale if physical division failed. Consequently, directing the appellant to obtain another final decree before execution was “completely unwanted” and the termination of Execution Proceedings No. EX-A-1600007 /14 amounted to an “illegal exercise of jurisdiction”.
Decision
Accordingly, the Supreme Court set aside the impugned orders of the High Court and restored Execution Case No. EX-A-1600007 / 14. The trial court was directed to entrust the execution proceedings to the same Advocate Commissioner who had submitted the earlier report, or alternatively appoint another Advocate Commissioner to conduct the auction and apportion the sale proceeds equally between the parties after accounting for mesne profits payable to the appellant. The Court further permitted both parties to participate in the auction process along with other bidders. Considering that the appellant was a septuagenarian, the trial court was directed to complete the proceedings within 2 months from receipt of the order. Consequently, the civil appeals were allowed with no order as to costs.
Also Read: Del HC: Partition suit cannot be rejected at threshold
[Jennifer Messias v. Leonard G. Lobo, 2026 SCC OnLine SC 882, decided on 18-5-2026]
*Judgment authored by: Justice S.V.N. Bhatti
