Holding

The decree, though termed preliminary, is deemed to contain the final, executable portion and may be executed without a separate final decree.

Summary

The appellant, Jennifer Messias, sought partition and separate possession of a flat jointly owned with the deceased husband. The trial court issued a decree on 13 April 2012 that declared the parties' shares, awarded possession and mesne profits to the appellant, and appointed an Advocate Commissioner to effect partition or, failing that, to order sale. The Advocate Commissioner reported that physical partition was impossible, leading the executing court to order a public auction, which the respondent contested. The High Court intervened, holding that a preliminary decree cannot be executed and directing the appellant to obtain a final decree before execution. The Supreme Court examined the nature of the decree under CPC s.2(2) and the Partition Act, concluding that the decree, though labelled preliminary, also contained the final, executable portion concerning possession, mesne profits, and sale. Consequently, the Court set aside the High Court's order, restored the execution proceedings, and directed the trial court to complete the auction within two months.

Issues considered

Whether the decree dated 13 April 2012 is a simple preliminary decree or also functions as a final decree for execution purposes.
Whether execution of a decree that contains both preliminary and final elements is permissible under Section 2(2) of the CPC and Order XX Rule 18.
Whether the High Court erred in interdicting the execution proceedings pending a separate final decree.

Legislation cited

Code of Civil Procedure, 1908s. Order 20 Rule 18, s. Order 26 Rule 14, s. Order XX Rule 12, s. Order XX Rule 18, s. s.2(2)
Partition Acts. s.2, s. s.3, s. s.4

Headnote

Issue for Consideration Whether the Decree in question is a simple Preliminary Decree, or whether the Trial Court, made it both a Preliminary and a Final Decree; whether the same could be put to Execution; whether the High Court erred in interdicting the Execution Proceedings holding that before Decree was necessary. Headnotes† Code of Civil Procedure, 1908 – s.2(2), Or.XX r.18, Or.XX r.12 – Preliminary decree when itself final decree – Appellant filed Suit for partition and separate possession of the Subject Flat – Preliminary Decree passed by Trial Court

Subjects

Order XX Rule 18 of CPCFinal Decree in a Suit for PartitionOrder XX Rule 12 of CPCSection 2(2) of CPCPreliminary Decree itself final DecreeExecutable portionNomenclature of DecreeDecree determined entitlementDecree determined right to possessionDecree determined mesne profitsSections 2 to 4 of Partition ActDeemed DecreeDecree for possession and mesne profitsTermination of Execution Proceedings illegalExecution Case restoredAdvocate CommissionerCourt Commissioner

Judgment

[2026] 6 S.C.R. 410 : 2026 INSC 502

Jennifer Messias
v.
Leonard G Lobo
(Civil Appeal No(s). 7980-7981 of 2026)
18 May 2026
[K.V. Viswanathan and S.V.N. Bhatti,* JJ.]

Issue for Consideration
Whether the Decree in question is a simple Preliminary Decree,
or whether the Trial Court, made it both a Preliminary and a Final
Decree; whether the same could be put to Execution; whether the
High Court erred in interdicting the Execution Proceedings holding
that before putting the Decree to Execution, a Final Decree was
necessary.

Headnotes†
Code of Civil Procedure, 1908 – s.2(2), Or.XX r.18, Or.XX r.12
– Preliminary decree when itself final decree – Appellant filed
Suit for partition and separate possession of the Subject
Flat – Preliminary Decree passed by Trial Court inter alia
directing the Advocate Commissioner to work out the division
of the subject flat by metes and bounds however, in case
such partition cannot be made the Subject Flat be sold,
and the sale consideration be divided between the parties –
Advocate Commissioner reported that the physical division
of the Subject Flat by metes and bounds was not possible –
Executing Court directed the public auction of the Subject
Flat in terms of the Preliminary Decree – Petition filed by
Respondent seeking direction to restrain the Executing Court
from proceeding with the Execution – High Court interdicted
the Execution Proceedings holding that a preliminary
decree cannot be executed directly and the existence of
a final decree is sine qua non for execution and; that the
Appellant was at liberty to approach the trial Court for grant
of final decree in terms of preliminary decree – Interference
with:

* Author
[2026] 6 S.C.R. 411

Jennifer Messias v. Leonard G Lobo

Held: High Court proceeded by the nomenclature of the Decree
without appreciating that, in certain circumstances, an Order made
u/ss.2 to 4 of the Partition Act is also a deemed Decree within the
meaning of s.2(2), CPC – Orders impugned do not refer to the
clauses in the Decree – The conclusion reached by the High Court
is that, before putting the same to Execution, a Final Decree was
necessary – The Decree, for all purposes, determined the entitlement
or right to possession, mesne profits, and the first option regarding
the mode and manner of working out the shares, in the event
of default in the sale of the Subject Flat – The direction to file a
fresh application after the passing of a Final Decree is completely
unwanted – In the facts and circumstances of this case, the Decree
should be construed as indicated – Termination of Execution
Proceedings was an illegal exercise of jurisdiction, set aside –
Execution Case restored – Partition Act – ss.2, 4. [Paras 16, 17]
Preliminary Decree; Final Decree – Object, purpose and scope,
discussed. [Para 13]

Case Law Cited
Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande
[1995] 2 SCR 776 : (1995) 3 SCC 413; Bimal Kumar v. Shakuntala
Debi [2012] 2 SCR 195 : (2012) 3 SCC 548; Kattukandi Edathil
Krishnan v. Kattukandi Edathil Valsan [2022] 7 SCR 1120 : (2022)
16 SCC 71 – referred to.

List of Acts
Code of Civil Procedure, 1908; Partition Act.

List of Keywords
Order XX Rule 18 of CPC; Final Decree in a Suit for Partition;
Order XX Rule 12 of CPC; Section 2(2) of CPC; “decree”;
Preliminary Decree itself final Decree; Not simple Preliminary
Decree; Executable portion; Nomenclature of Decree; Decree
determined entitlement; Decree determined right to possession;
Decree determined mesne profits; Sections 2 to 4 of Partition
Act; Deemed Decree; Decree for possession and mesne profits;
Termination of Execution Proceedings illegal; Execution Case
restored; Advocate Commissioner; Court Commissioner.
412 [2026] 6 S.C.R.

Supreme Court Reports

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No(s). 7980-7981
of 2026
From the Judgment and Order dated 27.07.2023 & 20.03.2025
of the High Court of Madhya Pradesh Principal Seat at Jabalpur
in MP No. 2005 of 2022 and in RP No. 947 of 2023, respectively.

Appearances for Parties
Advs. for the Appellant(s):
Abhishek Gulatee, Naveen Chaturvedi.
Advs. for the Respondent(s):
Siddharth R.Gupta, Mrigank Prabhakar, Pramod Thakre, Rahul
Rawat, Shantanu Sharma, Ms. Surbhi Saxena, Uddaish Palya,
Ms. Astha Singh, Aman Agarwal.

Judgment / Order of the Supreme Court

Judgment

S.V.N. Bhatti, J.

1. Leave granted.
2. The Civil Appeals arise from Orders dated 27.07.2023 in Miscellaneous
Petition No. 2005 of 2022 and 20.03.2025 in the Review Petition No.
947 of 2023, in the High Court of Madhya Pradesh at Jabalpur. The
impugned Orders, in effect, have set aside the Execution Proceedings
pending before the IInd Additional Judge, Jabalpur, in Civil Suit No.
7A/2011. The outcome of the adjudication appears simple, but the
Civil Appeals exemplify the Comedy of Errors.1 The polemic, which
is the subject of the final adjudication, is whether the Decree dated
13.04.2012 is a Preliminary or a Final Decree in itself, and whether
the same could be put to Execution. The narrative sounds interesting
to the fraternity. Still, the ordeal the Appellant is undergoing reminds
us of the oft-quoted expression that “the difficulties of a litigant in
India begin when he has obtained a decree”.

1 An event or series of events made ridiculous by the number of errors that were made throughout.
(Merriam Webster Dictionary)
[2026] 6 S.C.R. 413

Jennifer Messias v. Leonard G Lobo

3. Jennifer/Appellant and Peter Messias were married in 1980. In 1991,
the couple purchased Flat No. 101, Amba Apartment, Civil Line,
Jabalpur, also referred to as 101-A in the Advocate Commissioner’s
Report (“Subject Matter”) from their combined income. The couple
was judicially separated in 2003, which this Court confirmed in 2004.
Peter Messias was stated to have possession of the Subject Matter
purchased by the couple. On 26.03.2014, Peter Messias died. Leonard
G. Lobo/the Respondent, claims to be representing the interests of
the deceased Peter Messias on the basis of a registered Will dated
22.03.2014. In the Civil Appeals, we are not examining the relationship
or proximity of the respondent to the deceased Peter Messias. The
Respondent has remained in possession of the Subject Matter of
the Appeals by claiming through the late Peter Messias.
4. Appellant filed Civil Suit No. 7A/2011 for partition and separate
possession of the Subject Matter. On 13.04.2012, the Trial Court
passed a Preliminary Decree. The clauses relevant in the Preliminary
Decree are excerpted:
“(A)It is declared that the plaintiff is entitled to partition of
the suit property Flat no. 101, Amba Apartment, Civil Lines,
Jabalpur and obtain possession of her one-half share.
(B) The plaintiff is entitled to receive mesne profits of Rs.
1500/- per month in lieu of rent for her share of the suit
property from the date of filing the suit till the date of taking
possession of her one-half share.
xxx
2. And it is further ordered and decreed be and is hereby
appointed as Commissioner to make partition of the said
property according to the shares given above.
3. That if the said Commissioner finds that partition
cannot be made equal between the parties according
their respective rights without prejudice to the rights and
interest of some of them he shall report the amount of
compensation to be made by the parties for quality of
partition.”
5. The Appellant, as part of an intentional or unintentional comedy of
errors, filed an Execution Application to execute the Decree dated
13.04.2012 in Civil Suit No. 7A/2011. On 07.08.2013, the Execution
414 [2026] 6 S.C.R.

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Petition was dismissed. The Appellant was prompted to file an
application under Order XX Rule 18 of the Code of Civil Procedure,
1908 (“CPC”), numbered Execution No. EX-A-1600007/14. Peter
Messias died on 26.03.2014. On 15.07.2015, the Respondent was
brought on record as the legal representative of the deceased Peter
Messias in the Execution Petition. On 13.05.2016, the High Court
dismissed Civil Revision No. 47 of 2016, challenging the Respondent’s
impleadment. While dismissing the Revision, it was directed that
the Appellant’s application under Order XX Rule 18 of the CPC be
treated as an Interlocutory Application within the pending civil suit,
rather than a separate Execution Proceeding. In terms of the said
condition, the Execution Court appointed the Advocate Commissioner,
and the Advocate Commissioner’s Report, dated 17.04.2019, stated
that the Subject Matter, a small portion described as a flat, is not
available for division by metes and bounds. The Executing Court, vide
Order dated 05.07.2019, directed the public auction of the Subject
Matter in terms of the condition to the Decree dated 13.04.2012. The
Respondent again moved the High Court in Miscellaneous Petition
No. 4893 of 2019, complaining about the steps taken by the court in
relation to the sale of the Subject Matter and the apportionment of
the sale consideration in terms of the Decree dated 13.04.2012. On
24.09.2019, the High Court again interfered with the steps initiated
by the Appellant on 26.03.2014. The operative portion reads thus:
“The Court on receiving the report of Commissioner can
pass order for sale of property and distribution of proceeds.
Civil Court can also issue further directions under Order 20
Rule 18 of CPC as the Rule stipulates further directions
may be issued. This Court in C.R.No.47/2016 has passed
the order that application under Order 20 Rule 18 of CPC
is to be treated as an interlocutory application in pending
civil suit and proceed with the same. Since the report of
Commissioner is received, therefore, Court ought to have
pass a final decree in the civil suit and thereafter, property
ought to have been put to auction. In this case, Executing
Court is proceeded ahead for execution of preliminary
decree, which is not permissible in law.
Therefore, the impugned order dated 05.07.2019 is set-
aside, it is directed to the XV Additional District Judge,
Fast-Track Court, Jabalpur to proceed on the report of
[2026] 6 S.C.R. 415

Jennifer Messias v. Leonard G Lobo

Commissioner in Civil Suit No.7-A/2011 and pass order
considering the report of Commissioner as per the
provisions under Order 26 Rule 14 of CPC and further
pass orders as per Order 20 Rule18 (2) of CPC and
to draw a final decree, which will be executed by the
Executing Court.”
6. To comply with partition laws and to allow pre-emptive rights, the
Executing Court initiated a bidding process between the parties.
The Respondent offered Rs. 12,81,181/- for the Appellant’s share.
Subsequently, the Appellant submitted a higher sealed bid of Rs.
13,60,000/- for the purchase of the Respondent’s share. Before
the bidding process could be finalised, the Respondent again filed
a Miscellaneous Petition No. 2005 of 2022, praying for a direction
to restrain the Executing Court from proceeding with the Execution
in Case No. EX-A-1600007/14. Through the impugned Order, the
High Court interdicted the Execution Proceedings and left open for
consideration of remedies available to the Appellant as follows:
“19. Therefore, the proceedings which have been initiated
by the Executing Court if are subjected to scrutiny while
keeping in view the provisions of Code of Civil Procedure
as stipulated in Section 2(2) CPC as well as Order 20
Rule 18 of CPC and also the pronouncement made by
the Apex Court in the aforesaid decision, the trial Court
even could not have received the preliminary decree for
the purposes of the execution thereof. The existence of a
final decree is sine qua non for execution. A preliminary
decree cannot be executed directly and in terms of the
law laid down by the Apex Court in the case of Hameed
Joharan (supra), the Executing Court even cannot receive
the preliminary decree.
20. Therefore, the execution proceedings pending before
the Court of 2nd Additional District Judge, Jabalpur are
set aside. The decree holder is at liberty to approach
the trial Court by way of an application for grant of final
decree in terms of preliminary decree dated 13.04.2012
(Annexure-P/1), such an application if moved in terms of
this order by the plaintiff/decree holder the same shall be
dealt with by the trial Court in accordance with law.”
416 [2026] 6 S.C.R.

Supreme Court Reports

7. The Appellant filed a Review Petition, which was dismissed vide
order dated 20.03.2025. Hence, the Civil Appeals at the instance of
the Plaintiff/Decree Holder.
8. Advocate Abhishek Gulatee for the Appellant argues that the Orders
dated 27.07.2023 and 20.03.2025 fail to appreciate the earlier Orders
of the Executing Court dated 05.07.2019 and the High Court dated
24.09.2019. The fundamental error in the High Court’s appreciation
is that it proceeds on the nomenclature assigned to the Decree dated
13.04.2012. The Appellant filed an Execution Application at the 1st
instance, which was dismissed on 07.08.2013. The Appellant then filed
an Application under Order XX Rule 18 of the CPC, registered as EX-
A-1600007/14. Order XX Rule 18 of the CPC speaks of the passing of
a Final Decree in a Suit for Partition. The Court Commissioner, given
the extent available for Partition and the attendant circumstances of
the Report, stated that the Subject Matter cannot be partitioned by
metes and bounds. The Executing Court rightly ordered the public
auction of the Subject Matter, and there have been bids and counter-
bids from both the Appellant and the Respondent. The High Court
also interdicted the Execution Proceedings, and a direction has now
been issued to file an application for a Final Decree. It is urged that,
in view of the Advocate Commissioner’s Report dated 17.04.2019,
the Subject Matter is unavailable for partition by metes and bounds
through a Final Decree. Therefore, the Preliminary Decree itself
is final; the auction of the Subject Matter is the only solution; and
directing the filing of an Application under Order XX, Rule 18 (2)
of the CPC is not even procedural but a purely academic pursuit.
9. Advocate Siddharth R. Gupta for the Respondent argues that the
Decree dated 13.04.2012 is a pure and simple Preliminary Decree.
In law, a Preliminary Decree is not executed, as it merely determines
the rights to which the parties are entitled. The Executable Decree
becomes available upon the passing of the Final Decree. In law,
there is a clear distinction between a Preliminary Decree and a Final
Decree. No Exception could be taken to the impugned Orders. To
sum up, it is urged that Execution Proceedings are not maintainable;
the previous Orders have attained finality; the determining factor for
initiating Execution Proceedings is whether the Decree is Preliminary
or Final; the High Court acted well within its jurisdiction; and the
Appellant is not entitled to any mesne profits because the delay is
attributable to the Appellant.
[2026] 6 S.C.R. 417

Jennifer Messias v. Leonard G Lobo

10. We have taken note of the submissions and perused the record.
11. Section 2(2) of the CPC defines a “decree” and reads as follows:
“(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, or
(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;”
12. Under Order XX Rule 12 of the CPC, a court may pass a Decree for
possession and/or mesne profits, and under Order XX Rule 18 of the
CPC, the court may pass a Decree in suit for partition of property or
for separate possession. The said Rules provide as follows:

Order XX Rule 12 of the CPC
“12. Decree for possession and mesne profits.—(1) Where
a suit is for the recovery of possession of immovable
property and for rent or mesne profits, the Court may
pass a decree—
(a) for the possession of the property;
[(b) for the rents which have accrued on the property during
the period prior to the institution of the suit or directing an
inquiry as to such rent.
(ba) for the mesne profits or directing an inquiry as to
such mesne profits;]
418 [2026] 6 S.C.R.

Supreme Court Reports

(c) directing an inquiry as to rent or mesne profits from
the institution of the suit until—
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor
with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree,
whichever, event first occurs.
(2) Where an inquiry is directed under clause (b) or clause
(c), a final decree in respect of the rent or mesne profits shall
be passed in accordance with the result of such inquiry.”

Order XX Rule 18 of the CPC
“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 rights of the several parties interested in
the property and giving such further directions as may
be required.”
Accordingly, all the steps have been complied with.
13. The Object, purpose and scope of the Preliminary Decree and a
Final Decree have been explained in a catena of decisions, and we
are not purposing to burden the Judgment with precedents when
the position of the law is well established, but we refer to Shankar
[2026] 6 S.C.R. 419

Jennifer Messias v. Leonard G Lobo

Balwant Lokhande v. Chandrakant Shankar Lokhande2 and Bimal
Kumar v. Shakuntala Debi3, stating the following:

Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande
(supra)
“3. xxx Section 2(2) of CPC defines ‘decree’ to mean
“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”. 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. 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 a
final decree. The final decree merely carries into fulfilment
the preliminary decree.
4. Order 20, Rule 18 envisages passing of a decree for
partition of property or for separate possession of a share
therein. Sub-rule (2) is material which provides that “if and
insofar as such decree relates to any other immovable
property or to moveable property, the Court may, if the
partition or separation cannot be conveniently made without
further inquiry, pass a preliminary decree declaring the rights
of the several parties interested in the property and giving

2 (1995) 3 SCC 413.
3 (2012) 3 SCC 548.
420 [2026] 6 S.C.R.

Supreme Court Reports

such further directions as may be required”. (emphasis
ours) Thus, it could be seen that where the decree relates
to any immovable property and the partition or 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
court is also empowered to give such further directions
as may be required in this behalf. 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.”

Bimal Kumar v. Shakuntala Debi (supra)
“25. In the said case, after referring to Civil Procedure
Code by Mulla, this Court in Renu Devi case [(2003) 10
SCC 200 : AIR 2003 SC 1608] , while drawing a distinction
between the preliminary and the final decree, has stated
that a preliminary decree declares the rights or shares of
the parties to the partition. Once the shares have been
declared and a further inquiry still remains to be done for
actually partitioning the property and placing the parties
in separate possession of the divided property, then such
inquiry shall be held and pursuant to the result of further
inquiry, a final decree shall be passed. 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
[2026] 6 S.C.R. 421

Jennifer Messias v. Leonard G Lobo

rights of the parties are finally determined and a decree
is passed in accordance with such determination, which
is the final decree. Thus, fundamentally, the distinction
between preliminary and final decree is that: a preliminary
decree merely declares the rights and shares of the
parties and leaves room for some further inquiry to be
held and conducted pursuant to the directions made in the
preliminary decree which inquiry having been conducted
and the rights of the parties finally determined a decree
incorporating such determination needs to be drawn up
which is the final decree.
xxx
32. It is well settled in law that a preliminary decree
declares the rights and liabilities, but in a given case,
a decree may be both preliminary and final and that
apart, a decree may be partly preliminary and partly
final. It has been so held in Rachakonda Venkat Rao v.
R. Satya Bai [(2003) 7 SCC 452 : AIR 2003 SC 3322]. It
is worth noting that what is executable is a final decree
and not a preliminary decree unless and until the final
decree is a part of the preliminary decree. That apart,
a final decree proceeding may be initiated at any point
of time. It has been so enunciated in Hasham Abbas
Sayyad v. Usman Abbas Sayyad [(2007) 2 SCC 355].”
(Emphasis supplied)

14. Therefore, the crux of the consideration is whether the Decree dated
13.04.2012 is a simple Preliminary Decree, or whether the Trial Court,
in its wisdom, has made it both a Preliminary and a Final Decree.
This is determined not by Authorities but by the very Decree.
15. The Decree dated 13.04.2012 has the following facets: -
A. The Appellant and Peter Messias are entitled to a half share
each in the Subject Matter.
B. The Appellant is entitled to the possession of the Subject Matter.
C. The Appellant is kept out of possession; therefore, fixed mesne
profits of Rs. 1500/- are directed to be paid till the date of taking
possession of the half share.
422 [2026] 6 S.C.R.

Supreme Court Reports

D. The Advocate Commissioner is directed to work out the division
by metes and bounds, and in default, the Subject Matter is
sold, and the sale consideration is divided between the parties.
16. We take note of the Trial Court’s foresight in incorporating a condition
for the appointment of an Advocate Commissioner and the course
to be followed if a Final Decree by metes and bounds could not
be passed. The Appellant moved an Execution Petition in the first
instance, which was dismissed on 07.08.2013. The Appellant then
moved an Application under Order XX Rule 18 of the CPC for the
passing of a Final Decree. The Advocate Commissioner reported
to the Court that the physical division of the Subject Matter by
metes and bounds is not possible. This led to a direction to initiate
bidding on the Subject Matter between the parties. The Respondent
participated and again filed Miscellaneous Petition No. 2005 of 2022
in the High Court to restrain the Executing Court from proceeding
further with the matter. This argument was accepted by the High
Court, with reference to the Judgment of this Court in Kattukandi
Edathil Krishnan.4 We would have appreciated it if the High Court
had juxtaposed the Decree and determined whether the executable
portion thereof is being executed. The High Court has proceeded
by the nomenclature of the Decree without appreciating that, in
certain circumstances, an Order made under Sections 2 to 4 of the
Partition Act is also a deemed Decree within the meaning of Section
2(2) of the CPC. The judgments relied on by the High Court are
distinguishable and apt in the circumstances considered in those
precedents. The very judgment relied on by the High Court observes
that there is no need to file an Application under Order 20 Rule 18
of the CPC seeking a Final Decree.5 Still, the Appellant is called to
file an application. This is another error or Comedy of Errors. The

4 Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, (2022) 16 SCC 71.
5 Kattukandi Edathil Krishnan (supra)
“35. We are of the view that once a preliminary decree is passed by the trial court, the court should
proceed with the case for drawing up the final decree suo motu. After passing of the preliminary
decree, the trial court has to list the matter for taking steps under Order 20 Rule 18CPC. The
courts should not adjourn the matter sine die, as has been done in the instant case. There is also
no need to file a separate final decree proceedings. In the same suit, the court should allow the
party concerned to file an appropriate application for drawing up the final decree. Needless to
state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the
trial courts to list the matter for taking steps under Order 20 Rule 18CPC soon after passing of the
preliminary decree for partition and separate possession of the property, suo motu and without
requiring initiation of any separate proceedings.”
[2026] 6 S.C.R. 423

Jennifer Messias v. Leonard G Lobo

Orders impugned do not refer to the clauses in the Decree. The
conclusion reached by the High Court is that, before putting the
same to Execution, a Final Decree is necessary. The Decree dated
13.04.2012, for all purposes, determined the entitlement or right to
possession, mesne profits, and the first option regarding the mode
and manner of working out the shares, in the event of default in the
sale of the Subject Matter. The direction to file a fresh application after
the passing of a Final Decree is completely unwanted. In the facts
and circumstances of this case, for the ends of justice to be met, the
Decree should be construed as indicated above. The termination of
Execution Proceedings No. EX-A-1600007/14 amounts to an illegal
exercise of jurisdiction and is set aside.
17. We take note that the Advocate Commissioner’s Report dated
17.04.2019 states that the Subject Matter cannot be partitioned
by metes and bounds, and that the Trial Court was well within its
jurisdiction in proceeding with the bidding of the Subject Matter and
apportioning half of the sale consideration between the parties.
However, because of the Order of the High Court, the same could
not be proceeded with. Hence, we restore the Execution Case No.
EX-A-1600007/14 to file, and the Court is directed to entrust the
warrant to the same Advocate Commissioner who filed the Report
dated 17.04.2019, and if not possible, appoint another Advocate
Commissioner for conducting the auction and apportioning the same
between the parties. While apportioning, the Trial Court takes into
account the condition of the mesne profits and disburses the balance
to the Respondent. The parties are permitted to bid along with other
participants in the course of the sale of the Subject Matter. We take
note that the Appellant is a septuagenarian and direct the Trial Court to
complete the proceedings within 2 months of receiving this Order. The
Registry of this Court is directed to communicate the Order forthwith.
18. Consequently, the Civil Appeals are allowed. No order as to costs.
Pending application(s), if any, stand disposed of accordingly.

Result of the case: Appeals allowed.

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Headnotes prepared by: Divya Pandey