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2016 DIGILAW 230 (MP)

Prakash Chandra Jain v. Shantilal Jain

2016-03-14

ROHIT ARYA

body2016
ORDER 1. By this petition, under Article 227 of the Constitution of India, petitioner-decree holder has taken exception to the order dated 26.9.2013 passed by the trial Court dismissing the execution application. 2. Facts necessary for disposal of this petition are in narrow compass. 3. A suit for declaration of title and permanent injunction, as well as, for removal of construction was decreed by the trial Court vide judgment and decree dated 13.4.1998. Civil Appeal No.21-A/1998 arising therefrom at the instance of respondent-defendant was dismissed on 13.8.1999. However, this Court, allowed the second appeal vide judgment and decree dated 22.4.2009 passed in Second Appeal No.567/1999 and decree passed by the Courts below was modified to the extent that plaintiff was held entitled to the part of property fallen to his share as per release deed (Annexure P-1), share of Jadiya Bai and 1/3rd share of the property which had fallen to the share of Mishrilal. Accordingly, the appeal was partly allowed to the aforesaid extent. Thereafter, the petitioner-decree holder filed the execution case for apportionment of the share of plaintiff. The executing Court, by detailed impugned order, has concluded that in absence of partition of the property in question amongst persons entitled for the share, it is not possible for apportionment of the share of plaintiff and, accordingly, rejected the execution case. 4. According to learned counsel for the petitioner, the impugned order suffers from illegality and jurisdictional error for the reason that any objection as regards execution of the decree can be raised under section 47 of the CPC and the Executing Court is bound to decide the objection. No separate suit can be filed for the relief which has already been granted by the appellate Court. 5. Per contra, learned counsel for the respondent contends that the decree passed by this Court in fact and in effect is declaratory in nature in a suit for declaration of title and permanent injunction. Law is well settled that executing Court cannot travel beyond the terms of the decree. Unless a decree of partition is passed in a suit for partition, the same cannot be put to execution and a declaratory decree cannot be executed. He refers to Order 20 rule 18, CPC in the aforesaid context and submits that specific provision is provided for passing of preliminary decree declaring the rights of parties interested in partition. Unless a decree of partition is passed in a suit for partition, the same cannot be put to execution and a declaratory decree cannot be executed. He refers to Order 20 rule 18, CPC in the aforesaid context and submits that specific provision is provided for passing of preliminary decree declaring the rights of parties interested in partition. Thereafter, upon partition, complete final decree is passed specifying the share of parties with metes and bounds. It is the final decree which can be put to execution and not even the preliminary decree. The facts in hand suggest that the decree is merely a declaratory decree, which is un-executable. He placed reliance on the judgment of the Andhra Pradesh High Court in the case of Hasimathunnisa Begum v. Vithal Rao Gangaji and another [ AIR 1979 AP 273 ], to buttress his contention. 6. Heard, counsel for the parties. 7. Before adverting to the submissions advanced, it is apposite to reiterate the law as regards preliminary decree and final decree. The apex Court, in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman [ (1970)1 SCC 670 )], has held as under :- “6. A Court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties” 8. The said view has been reiterated in Bhanwarlal Bhandari v. Universal Heavy Mechanical Lifting Enterprises [ (1999)1 SCC 558 )]. Further, in the case of Shankar Balwanti Lokhande (Dead) By LRs v. Chandrakant Shankar Lokhande and another [ (1995)3 SCC 413 )], it has been held as under:- “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. 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 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 preliminary 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 Commissioner to be appointed in this behalf admittedly, no Commissioner was appointed and no final decree had been passed relating to all.” 9. In view of the aforesaid enunciation of law, this Court finds that there is no illegality or jurisdictional error in the order passed by the trial Court. 10. The petition sans merit and is, accordingly, dismissed.