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Supreme Court Of India

(From : Bombay)*

Hon'ble Judge(s): Satya Brata Sinha, Markandeya Katju , JJ

(A) Civil P.C. (5 of 1908) , S.2(2), S.54, O.20 R.18— Suit for partition - Preliminary decree -Auction sale of suit property - Not permissible without initiating formal final decree proceedings. 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. 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. 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. Without drawing a final decree proceeding, the Court cannot put the property on auction sale.(Para 8 9 10 17 18) Where in the partition suit the suit 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 be done only in a final decree proceeding. Only when final allotmen....