Research › Search › Judgment

Calcutta High Court · body

2025 DIGILAW 833 (CAL)

Nakul Chandra Pattanayak v. Surendranath Khaskil

2025-11-20

HIRANMAY BHATTACHARYYA

body2025
JUDGMENT : HIRANMAY BHATTACHARYYA, J. 1. The order dated 04.04.2024 passed by the Learned Civil Judge (Senior Division), 2nd Court, Tamluk, Purba Medinipur in T.S. No. 53 of 2013 is under challenge in C.O. 87 of 2025 at the instance of the defendants. By the order impugned, the Partition Commissioner’s Report dated 09.05.2016 in terms of the preliminary decree dated 25.03.2014 was accepted upon holding that the written objection filed by the petitioners against the Commission Report has no merit at all. By the self-same order, a Partition Commissioner was appointed to hold Commission in terms of the preliminary decree dated 30.09.2022 declaring the shares of the defendant no. 1 and 2 of the suit property and a date was fixed for filing Commissioner’s Report. 2. C.O. 2513 of 2025 is at the instance of the plaintiffs and is directed against the order dated 09.04.2025 passed by the Learned Civil Judge ( Junior Division) 1 st Court, Contai, Purba Medinipur in Title Suit No. 197 of 2009. By the said order, the report of the Partition Commissioner was accepted and the matter was disposed of with a direction to the office to draw the final decree as and when the stamp duty will be submitted in accordance with law. 3. In course of hearing of the aforesaid Civil Orders, a question arose whether an application under Article 227 of the Constitution of India challenging an order accepting a Partition Commissioner’s Report is maintainable. 4. Since a common question of law arose, both the Civil Orders were taken up for analogous hearing only on the point of maintainability of an application under Article 227 of the Constitution of India against an order accepting Partition Commissioner’s Report. 5. Mr. Ray, learned advocate appearing for the petitioner in C.O. 87 of 2025 contended that no appeal lies against an order accepting the Partition Commissioner’s Report and a Final Decree passed in a partition suit is an appealable decree. He submits that a Final Decree is yet to be passed in Title Suit No. 53 of 2013 and, therefore, an application under Article 227 of the Constitution of India is maintainable. In support of such contention, Mr. He submits that a Final Decree is yet to be passed in Title Suit No. 53 of 2013 and, therefore, an application under Article 227 of the Constitution of India is maintainable. In support of such contention, Mr. Roy placed reliance upon a Division Bench decision of the Hon’ble High Court at Calcutta delivered on 03.12.2024 in FAT No. 47 of 2022 in the case of Prasanna Kumar Koley and others vs. Biswanath Koley and a judgment of the Hon’ble Patna High Court reported at 1995 Supreme (Pat) 162 in the case of Uma Kant Jha vs. Shital Thakur. 6. Mr. Rajdip Bhattacharya, learned advocate for the opposite party in C.O. 87 of 2025 contended that a party aggrieved against an order accepting the report of the Partition Commissioner can raise all challenges to the report and the plan of the Commissioner in the appeal against final decree and not by way of revision. In support of such contention, he placed reliance upon an order dated 26.06.2018 passed by a co-ordinate bench in C.O. No. 1657 of 2018 in the case of Sanat Kumar Dey vs. Santanu Kumar Dey & Anr. and a judgment of the Hon’ble Kerala High Court reported at 2012 SCC Online Ker 6599 in the case of Papy George Perumpally Kunnu Veedu vs. Kutthiamma Kunjamma Perumpallly Kunnu Veedu. 7. Mr. Probal Mukherjee, learned Senior Advocate was appointed as Amicus Curie. Mr. Mukherjee submitted that there are two stage in a partition suit and the second stage is the stage when a final decree is passed. He contended that a final decree concludes the proceedings before the Court and the suit is treated to have come to an end for all practical purposes. In support of such contention, Mr. Mukherjee, placed reliance upon a judgment of the Hon’ble Supreme Court in the case of Mool Chand vs. Director, Consolidation, (1995) 5 SCC 631 . Mr. Mukherjee highlighted the distinction between a “final decree” and “finality of a decree” as pointed out by the Hon’ble Supreme Court in Bikoba Deora Gaikwad & Ors. vs. Hirabai Marutirao Ghorgare, (2008) 8 SCC 198 . Mr. Mukherjee contended that an order of acceptance of Partition Commissioner’s Report overruling objections against it without passing any direction for drawing up of final decree is an interlocutory order which does not determine the lis finally. According to Mr. vs. Hirabai Marutirao Ghorgare, (2008) 8 SCC 198 . Mr. Mukherjee contended that an order of acceptance of Partition Commissioner’s Report overruling objections against it without passing any direction for drawing up of final decree is an interlocutory order which does not determine the lis finally. According to Mr. Mukherjee, if the order of acceptance of the partition Commissioner’s Report is integral to the order directing drawing of final decree and nothing is left to be adjudicated by the learned Trial Court, it partakes the character of a decree and such an order can be assailed in the First Appeal under Section 105 of the Code of Civil Procedure. 8. The issue that falls for consideration is whether an application under Article 227 of the Constitution of India challenging an order accepting a Partition Commissioner’s Report is maintainable. 9. “Decree” is defined in Section 2(2) of the Code of Civil Procedure. Section 2(2) is extracted hereunder: “ 2. Definitions .- ***** (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 [* * *] Section 144, but shall not include: (a) any adjudication from which an appeal lies as an appeal from an order. (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.” 10. From the definition of “Decree” it follows that a decree may be either preliminary or final or partly preliminary and partly final. 11. “Decree” means the formal expression of adjudication by the Court conclusively and finally determining the rights of the parties with regard to all or any of the matters in controversy in the suit. Decree may be either preliminary or final. The Explanation appended to Section 2(2) of the Code explains the distinction between a preliminary decree and a final decree. “Decree” means the formal expression of adjudication by the Court conclusively and finally determining the rights of the parties with regard to all or any of the matters in controversy in the suit. Decree may be either preliminary or final. The Explanation appended to Section 2(2) of the Code explains the distinction between a preliminary decree and a final decree. A decree is said to be a preliminary decree when further proceedings are to be taken before the suit can be said to be completely disposed of. A decree is final when such adjudication completely disposes of the suit. 12. Therefore, only when a suit is completely disposed of, a final decree would come into being. 13. Order 20 Rule 18 of the Code of Civil Procedure deals with a decree for partition of property or separate possession. Order 20 Rule 18 is extracted hereunder. “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 and 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 immovable 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 right of the several parties interested in the property and giving such further directions as may be required.” 14. The Hon’ble Supreme Court in Shankar Balwant Lokhande vs. Chandrakant Shankar Lokhande & Ors. (1995) 3 SCC 413 observed that where the decree relates to any immovable property and the partition and separation cannot be conveniently made without further inquiry, then the Court is required to pass a preliminary decree declaring the rights of several parties interested in the property. The Hon’ble Supreme Court in Shankar Balwant Lokhande vs. Chandrakant Shankar Lokhande & Ors. (1995) 3 SCC 413 observed that where the decree relates to any immovable property and the partition and separation cannot be conveniently made without further inquiry, then the Court is required to pass a preliminary decree declaring the rights of several parties interested in the property. The Hon’ble Supreme Court held thus: “A preliminary decree in a partition action, is a step in the suit which continues until the final decree is passed. In a suit for partition by a coparcener or co-sharer, the court should not give a decree only for the plaintiff's share, it should consider shares of all the heirs after making them parties and then pass a preliminary decree. The words "declaring the rights of the several parties interested in the property" in sub-rule (2) would indicate that shares of the parties, other than the plaintiff(s), have to be taken into account while passing a preliminary decree. Therefore, preliminary decree for partition is only a declaration of the rights of the parties and the shares they have in the joint family or coparcenary property, which is the subject-matter of the suit. The final decree should specify the division by metes and bounds and it needs to be engrossed on stamped paper.” 15. Order 26 Rules 13 and 14 of the Code of Civil Procedure which provides for Commissions to make partition are extracted hereunder for better appreciation of the issue in question: “Rule 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. Rule 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 authorised thereto by the said order, award sums to be paid for the purpose of equalising 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 or reports 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 fit.” 16. The Hon’ble Supreme Court in Mool Chand (supra) held that the definition of “decree” contained in Section 2(2) read with the provisions contained in Order 20 Rule 18 and order 26 Rules 13 and 14 of the Code indicate that a preliminary decree is to be passed first in a partition suit and thereafter a final decree is passed for actual separation of shares in accordance with the proceedings under Order 26. Thus, there are two stages in a suit for partition. The first stage is reached when the preliminary decree is passed under which the rights of the parties in the property in question are determined and declared. The second stage is the stage where a final decree is passed which concludes the proceedings before the Court and the suit is treated to have come to an end for all practical purposes. 17. Section 96 of the Code of Civil Procedure provides for appeals from Original Decree. An appeal lies against a preliminary decree. Section 97 of the Code of Civil Procedure lays down the provisions for appeal from final decree where no appeal is preferred against preliminary decree. Section 97 of the Code is extracted hereunder: “97. Appeal from final decree where no appeal from preliminary decree. Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.” 18. Section 97 of the Code is extracted hereunder: “97. Appeal from final decree where no appeal from preliminary decree. Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.” 18. Sections 96 and 97 of the Code follows that an appeal lies against a preliminary decree as well as a final decree in a suit for partition. However, if no appeal is preferred against the preliminary decree, the correctness of such decree cannot be challenged by the party aggrieved in an appeal against the final decree in view of Section 97 of the Code. 19. It is well settled that in suits which contemplate the making of two decrees, a preliminary decree and a final decree, the decree which would be executable would be the final decree. 20. The Hon’ble Supreme Court in Venkata Reddi & Ors. vs. Pothi Reddi, AIR 1963 SC 992 held that the finality of a decree or a decision does not necessarily depend upon its being executable. The Hon’ble Supreme Court after noting the provisions of Section 97 of the Code held that as to the matters covered by a preliminary decree, the same is regarded as embodying the final decision of the Court passing that decree. 21. The Hon’ble Supreme Court in Bikola Deora Gaikwad (supra) reiterated the observations in Shankar Balwant Lokhande (supra) wherein it was held that after passing a preliminary decree for partition, the decree cannot be made effective without a final decree. 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 so as to entitle a party to apply for execution of the final decree. 22. In the light of the aforesaid discussion, this Court holds that only after a final decree is passed in a suit for partition thereby working out the rights of all the parties with regard to the properties which are the subject matter of partition, rights of the parties in a suit for partition are conclusively determined. 23. 22. In the light of the aforesaid discussion, this Court holds that only after a final decree is passed in a suit for partition thereby working out the rights of all the parties with regard to the properties which are the subject matter of partition, rights of the parties in a suit for partition are conclusively determined. 23. Order 26 Rule 14(3) of the Code vests power upon the Court to confirm or vary the report of the Partition Commissioner, and in such cases the Court shall pass a decree in accordance with the report as varied or confirmed. 24. This Court has already held that until a final decree is passed working out the rights of all the parties, the rights of the parties in a partition suit is not conclusively determined. Appeal lies against a decree. An order accepting a Partition Commissioner’s Report is also not an order from which an appeal lies under Order XLIII Rule I of the Code. This Court is, therefore, of the considered view that no appeal lies against an order merely accepting the Partition Commissioner’s Report if no executable final decree is drawn working out the rights of the parties dividing the property in terms of the preliminary decree and the Final Decree passed is an appealable decree. 25. In Prasanna Kumar Koley (supra) a First Appeal was preferred against a Final decree passed in a suit for partition. The issue which is the subject matter of consideration did not arise for consideration before the Hon’ble Division Bench. 26. The decision in Uma Kant Jha (supra) supports the view taken by this Court that no appeal lies against an order passed by a Court accepting the report of Partition Commissioner. 27. In view of Section 105 of the Code of Civil Procedure, an interlocutory order which had not been appealed from either because no appeal lay or even though appeal lay, an appeal was not preferred can be challenged in appeal from the decree. 28. In Sanat Kumar Dey (supra), the co-ordinate bench after noting the nature of the objections raised against the Partition Commissioner’s Report disposed of the civil revision application upon giving liberty to the person aggrieved to take all objections to the Commissioner’s Report in any appeal/cross objection against the final decree that may be passed in the partition suit. 29. 28. In Sanat Kumar Dey (supra), the co-ordinate bench after noting the nature of the objections raised against the Partition Commissioner’s Report disposed of the civil revision application upon giving liberty to the person aggrieved to take all objections to the Commissioner’s Report in any appeal/cross objection against the final decree that may be passed in the partition suit. 29. In Papy George (supra), the Hon’ble Kerala High Court after noting the proviso to Section 115 CPC, held that the revision was not maintainable and reserved the right of the petitioner therein to challenge the Commissioner’s Report in the appeal against the Final Decree. The said decision was rendered in an application under Section 115 CPC and not under Article 227 of the Constitution of India. 30. This Court, therefore, holds that an application under Article 227 of the Constitution is maintainable against an order accepting the Partition Commissioner’s Report until the Final decree is passed thereby working out the rights of all the parties with regard to the properties which are subject matter of partition. The issue is accordingly answered. 31. The next question that arises is whether this application under Article 227 shall be decided on merits or the person aggrieved against the order accepting Commissioner’s Report should be given liberty to challenge such order in an appeal or cross-objection against the Final Decree that may be passed. This Court feels that the parties should be afforded an opportunity of hearing on this issue. 32. In view of change of determination let these matters go out of list. Parties will be at liberty to mention the matter before the bench having determination. Let the Civil Revision Applications be de-tagged for further consideration. 33. Before parting, this Court acknowledges the valuable assistance rendered by Mr. Mukherjee, the amicus curie appointed by this Court.