Sunday, 3 July 2016

When preliminary decree for partition can not be executed?

 The final decree proceedings were taken after the passing of the preliminary decree. We are not much concerned regarding the division of the revenue yielding estate and other moveable property. It is an admitted position that a Commissioner was appointed by the Court for effecting the partition of the house. It appears that the Commissioner on giving opportunities to the contesting parties, finalised a Scheme for partition. The report of the Commissioner was put before the Court. Objections were raised to that report by the contesting parties. The Court ultimately passed an order overruling the objections raised by the present petitioner. It is an admitted position prevailing even to-day that the Court has not yet passed the final decree. In spite of this, the advocate appearing for the plaintiff-decree-holder in the trial Court, presented a Regular Darkhast before the Court. The illegality has crept in right from the inception of this Darkhast and it pains tremendously to point out that an advocate has contributed substantially to the final outcome. During the course of this Special Darkhast, the warrant of possession came to be issued by the Court directing the bailiff to put the decree-holder in possession of the ground floor of the house, though in fact there was no decree to that effect. The Court not only issued the warrant, but on the pt her hand granted police help to the decree-holder, so that the possession could be effectively delivered to the decree-holder. With the help of police, the bailiff put the decree-holder in possession of the property and a record was accordingly submitted to the court.
Thus, the whole process of putting the decree-holder in possession of the property is vitiated. In my opinion, the execution application could not be filed before the Court, nor could the Court issue a warrant, nor could the Bailiff execute that warrant, nor could any police aid be granted by the Court. Thus, the process being vitiated, there is no justification for the decree-holder remaining and continuing in possession of the property. I would set aside the order passed by the trial Court and direct the Court to put the judgment-debtor (present petitioner) in possession of the property which he lost due to illegal action. 
Bombay High Court
Vishwasrao vs Ushabai And Anr. on 11 February, 1987
Equivalent citations: AIR 1988 Bom 392, 1987 (1) BomCR 707
Bench: S Ratnaparkhi


1. The petitioner, who was a judgment-debtor before the Civil Judge, Senior Division, Wardha in Special Darkhast No. 4/79, has challenged the order passed by the Court on 18-1-1985.
2. The following facts will be necessary for appreciating the real controversy. The respondent 2 Hanumantrao is the son of the petitioner-Vishwasrao. Respondent 1 Sou. Ushabai is the mother of Hanumantrao and wife of Vishwasrao. They constituted a joint Hindu family which owned extensive property-moveable as well as immoveable. Hanumantrao instituted a civil suit for partition and separate possession of his share in the family property. A preliminary decree came to be passed in the suit.
3. The final decree proceedings were taken after the passing of the preliminary decree. We are not much concerned regarding the division of the revenue yielding estate and other moveable property. It is an admitted position that a Commissioner was appointed by the Court for effecting the partition of the house. It appears that the Commissioner on giving opportunities to the contesting parties, finalised a Scheme for partition. The report of the Commissioner was put before the Court. Objections were raised to that report by the contesting parties. The Court ultimately passed an order overruling the objections raised by the present petitioner. It is an admitted position prevailing even to-day that the Court has not yet passed the final decree. In spite of this, the advocate appearing for the plaintiff-decree-holder in the trial Court, presented a Regular Darkhast before the Court. The illegality has crept in right from the inception of this Darkhast and it pains tremendously to point out that an advocate has contributed substantially to the final outcome. During the course of this Special Darkhast, the warrant of possession came to be issued by the Court directing the bailiff to put the decree-holder in possession of the ground floor of the house, though in fact there was no decree to that effect. The Court not only issued the warrant, but on the pt her hand granted police help to the decree-holder, so that the possession could be effectively delivered to the decree-holder. With the help of police, the bailiff put the decree-holder in possession of the property and a record was accordingly submitted to the court.
4. Seeing that he has been illegally dispossessed of the property, the judgment-debtor No. 1 filed an application before the Executing court on 25-6-1984 requesting the Court to restore the possession of the property to him. He also requested the Court to stay the further proceedings in the execution. The reasons were given in details to justify these prayers. The learned Civil Judge, Senior Division, by his order passed on 15-1-1985 rejected the application. It is this order which has been challenged in this revision.
5. Mr. Parchure, the learned advocate for the respondent No. 2 (original decree-holder) conceded before me that there was no final decree passed by the Court which could justify the execution. What he urged before me was that though the final decree was not prepared by the trial Court, still all the preliminaries were complete, inasmuch as the Commissioner was appointed and he had submitted his report. Not only that, but the objection raised by the contesting parties were also considered by the Court and the Court expressed its views regarding the report submitted by the Commissioner. What he urged before me was that eventually the Court was bound to pass a decree in pursuance of the Commissioner's report, though in fact no decree was passed. It was his contention, that the Court has practically taken a view relying on the report of the Commissioner that the ground floor should be allotted to the decree-holder. What the trial Court did, according to him, was only to expedite the matter and put the decree holder in possession of the ground floor, particularly when the decree-holder was occupying only the tenanted premises. What he wanted to say before this Court was that, there was merely an irregularity and not an illegality. I find myself unable to accept this argument, because according to me it is a clear case where the trial Court has acted without jurisdiction in entertaining the execution application without any decree. In fact, the order issuing warrant of possession and the further executing warrant of possession, has been completely vires, particularly when no decree justifying this execution was passed till then. Mr. Parchure, the learned advocate for the respondent 2 wanted this Court to take purely equitable view of the matter. It will be hard for this Court to close its eyes to the bald realities which prevailed before the executing Court. The over-enthusiasm not only of the decree-holder, but equally of his advocate to put in the execution application even in the absence of the decree and then to push it further, are all the things which cannot even be imagined of. In my view, the whole process right from accepting the execution application to issuing warrant and then execution of the warrant, has been without jurisdiction. Thus, though in fact, the decree holder has been put in possession of the property, the whole act is tainted with illegality.
6. More surprising is the rationale adopted by the learned Judge of the trial Court. Though he conceded that no warrant of execution could be issued by the Court, particularly when there was no decree justifying the execution and the consequential warrant, still he insisted that the Court was justified in protecting the possession of the decree-holder on purely equitable considerations. The rationale is not only wrong, but shocking, particularly when the Court had justified its own illegal action.

7. Thus, the whole process of putting the decree-holder in possession of the property is vitiated. In my opinion, the execution application could not be filed before the Court, nor could the Court issue a warrant, nor could the Bailiff execute that warrant, nor could any police aid be granted by the Court. Thus, the process being vitiated, there is no justification for the decree-holder remaining and continuing in possession of the property. I would set aside the order passed by the trial Court and direct the Court to put the judgment-debtor (present petitioner) in possession of the property which he lost due to illegal action. We would expect the same zeal in restoring the possession to the judgment-debtor (the present petitioner) as one shown in putting the decree-holder in possession of that property." The revision is allowed. Rule is made absolute. The respondent 2 shall bear the costs of the petitioner in this revision in addition to his own.
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