Holding

A property cannot be put to auction sale without a final decree; only a final decree proceeding is executable, and any order passed without jurisdiction is a nullity.

Summary

The appellant and respondents were brothers involved in a partition suit filed by Respondent No.1. A preliminary decree was passed in 1999, after which a special petition was treated as an application for a final decree. A local commissioner reported the property to be impartible and a sale proclamation was issued, leading to an auction without a final decree. The appellant challenged the auction, but the trial court allowed it, and the High Court dismissed his writ petition. The Supreme Court held that execution, including auction, can only follow a final decree; a preliminary decree cannot be executed and any order without jurisdiction is a nullity. Consequently, the auction was set aside, the appellant was directed to deposit sums for the respondents' shares and interest, and the appeal was allowed subject to these directions.

Issues considered

Whether a suit property can be put to auction sale without the initiation of a final decree proceeding.
Whether an order passed by a court lacking jurisdiction is a nullity.

Legislation cited

Code of Civil Procedure, 1908s. 2, s. 20(18), s. 21(13), s. 21(14), s. 26(13), s. 26(14), s. 54

Subjects

partition suitpreliminary decreefinal decreeauction salejurisdictionnullityCivil Procedure Codeexecution of decreeproperty law

Judgment

A HASHAM ABBAS SA YYAD
v.
USMAN ABBAS SA YY AD AND ORS.

DECEMBER 12, 2006

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Code of Civil Procedure, 1908-ss. 2, 54, 20 r.18 0. 21 r. 13, 14, 0.
26 rr. 13, 14-Court cannot put the property on auction sale without drawing
C final decree proceedings-After passing a preliminary decree for partition,
steps in execution not to be taken like appointment of local commissioner
for division by metes and bounds or auction sale without first passing of a
final decree-Preliminary decree only declares rights of parties-For
execution there must be a final decree which must be on stamp paper.

D Appellant and respondent nos. 1 and 2 are brothers. Respondent No.I
filed partition suit. Preliminary decree was passed on 16.3.1999. A special
petition was filed on 29.11.1999. Then a Local Commissioner was appointed
who gave the report that the property was impartible. A sale proclamation
was issued. The appellant expressed his intention to buy the said property. He
was called upon to deposit money which he failed to pay. On 15.4.2006, trial
E Court held that the Special petition on 29.11.2006 be treated as an application
for final decree. Appellant filed writ petition against it, which was dismissed.

In appeal to this Court, the question for consideration is "whether suit
property could be p_ut to auction sale without initiating final decree
proceedings".
F
Allowing the appeal subject to certain observation and directions, the
Court

HELD: 1. 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
G decree, and not a preliminary decree, unless and until final decree is a part
of the preliminary decree. Without drawing a final decree proceeding, the
court could not have put the property on auction sale. (747-H; 748-A]

Rachakonda Venkat Rao and Ors. v. R. Satya Bai (Dead) by LRs. and

H 740
HAS HAM ABBAS SA YY AD v. USMAN ABBAS SA YY AD 741
Anr., (200317 SCC 452, relied on. A·
Shankar Ba/want Lokhande (Dead) v. Chandrakant Shankar Lokhande
and Anr., (1995) 3 SCC 413; WB. Essential Commodities Supply Corpn. v.
Swadesh Agro Farming & Storage Pvt. Ltd and Anr., (1999) 8 SCC 315;
Hameed Johram (Dead) and Ors. v. Abdul Salam (Dead) by Lrs. and Ors.,
(2001) 7 SCC 573; Moo/ Chand and Ors. v. Dy. Director, Consolidation and B
Ors., (19951 5 SCC 631 and Dr. Chiranji Lal (D) by Lrs. v. Hari Das (D) by
Lrs., (2005) 10 SCC 746, referred to.

2. It is true that the 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 have been done only in a final decree C
proceeding. Only when final allotments were made or a determination is made
that the property should be put on auction sale, a final decree in respect thereof
should have been passed. (748-B-CI

3.1. An order passed by a person lacking inherent jurisdiction would D
be a nullity. The principle of estoppel, waiver and acquiescence or even res
judicata which are procedural in nature would have no application in a case
where an order has been passed by the Tribunal/Court which has no authority
in that behalf. Any on~er passed by a court without jurisdiction would be coram
nonjudice being a nullity, the same ordinarily would not be given effect to.
E
ChiefJustice ofAndhra Pradesh and Anr. v. I. VA. Dikshitulu and Ors.,
(1979) SC 193; MD. Army Welfare Housing Organization v. Sumangal Service
(P) Ltd., (2004) 8 SCC 619, Zila Sahakari Kendrya Bank Maryadit v.
Shahjadi Begum and Ors., (2006) 9 SCALE 675 and Shahbad Co-<?P· Sugar
Mills Ltd v. Special Secretary to Govt. ofHaryana and Ors., (2006) 11 SCALE
674, relied on. F
Harshad Chiman Lal Modi v. DLF Universal Ltd and Anr., (20051 7
sec 791, referred to.
3.2. A distinction must be made between a decree passed by a court which
has no territorial or pecuniary jurisdiction in the light of Section 21 of the G
Code of Civil Procedure, and a decree passed by a court having no jurisdiction
in regard to the subject matter of the suit. Whereas in the former case, the
appellate court may not interfere with the decree unless prejudice is shown,
ordinarily the second category of the cases would be interfered with. (749-C(
H
742 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 4. In some decisions of this Court where a property that had been put to
auction and despite setting aside of the decree, the Court had not interfered
with. In this case possession of the property has not been delivered to the
auction purchaser. The suit property is a residential house. The auction sale
was wholly illegal. The auction purchaser can otherwise be compensated on
B monetary terms. (749-D-E)

Bombay Dyeing and Mfg. Co. ltd v. Bombay Enviromental Action Group
and Ors., (2006] 3 SCC 459, relied on.

5. In the peculiar facts and circumstances of the case, and with a view
C to do complete justice to the parties, the appellant is directed to deposit a sum
of Rs. 18 lakhs before the Trial Judge, who shall immediately allow
Respondent Nos. 1 and 2 to withdraw a sum of Rs. 9 lakhs each towards their
shares in the property. The appellant furthermore would desposit such amount
in the court towards payment of interest by way of compensation @ 9% p.a.
from the date of deposit till the actual payment is made, which would be payable
D to the auction purchaser, which is just and reasonable. In the event of
compliance of the aforementioned direction, the auction shall stand set aside
and the decree for partition shall stand satisfied. (749-F-H; 750-A-D)

Kishori Lal v. Sales Officer, District Land Development Bank and Ors.,
(2006)8 SCALE 521, relied on.
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5721 of2006.

From the Judgment and Order dated 18.7.2006 of the High Court of
Judicature at Bombay in Writ Petition No. 4438/2006.

p Makarand D. Adkar, Vijay Kumar and Vishwajit Singh for the Appellant.

Rajiv K. Garg, Ashish Garg and Annam D.N. Rao for the Respondents
I and 2.

Suruchii Aggarwal for the Respondent No. 3.
G
The Judgment of the Court was delivered by

S.B. SINHA, J. Leave granted.

Appellant, Respondent No. I and Respondent No.2 are brothers. A
H suit for partition was filed by Respondent No. I. A preliminary decree was
HAS HAM ABBAS SA YY AD v. USMAN ABBAS SA YY AD [S.B. SINHA, J.] 743

passed on 16.03.1999. An application purported to be a Special Darkhast was A
filed by him on 29.11.1999. An Advocate Commissioner was appointed. He
was of the opinion that the property was impartible. A proposal was mooted
that the property be put on sale in between the co-sharers. Appellant accepted
the Commissioner's report. He however filed an application for putting the
said suit property on auction sale and for equal distribution of the proceeds B
thereof amongst the co-sharers. An objection to the report of the said
Advocate Commissioner was filed by the appellant. The court allowed the
appellant to appoint an architect at his own cost. He, however, failed to
comply with the said order. A sale proclamation was issued. The appellant
expressed his intention to buy the said property at the valuation made by the
Government Valuer. A valuation report was filed by the appellant on 4.5.2005 C
against which Respondent No. I filed an objection. The appellant was called
upon to deposit 2/3rd of the amount stated in the valuation report. He failed
to do so. On or about 21.11.2005, he filed an application expressing his
willingness to deposit shares of Respondent Nos. I and 2. He also sought
for permission to deposit an amount of Rs.2.5 lakhs. By an order dated
22.11.2005, the Trial Court held that since the property was put on auction D
sale, the highest bid would be treated to be the best price of the suit property
and there was no need for appointment of any valuer to ascertain the market
price thereof. Another objection was filed by the appellant stating that in
view of the facts and circumstances of the case, he should be allowed to
buy the shares of other so-sharers. The said application was rejected by an E
order dated 14.12.2005. By an order dated 15.4.2006, the learned Trial Judge
held that it was not necessary to initiate a final decree proceeding and the
said purported Special Darkhast filed by Respondent No. I was treated to be
an application therefor. A writ petition filed by the appellant was dismissed
by the High Court by reason of the impugned order..
F
The short question which, inter alia, arises for consideration is as to
whether the property in suit could be put on auction sale without initiating
a formal final decree proceeding.

"Decree" has been defined in Section 2(2) of the Code of Civil Procedure,
1908 to mean: G
"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
H
744 SUPREME COURT REPORTS [2006) SUPP. JO S.C.R.

A 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.
B
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;"

C We may also notice Section 54 of the Code of Civil Procedure which is
in the following terms :

"54. Partition of estate or separation of share.- Where the decree is
for the partition of an undivided estate assessed to the payment of
revenue to the Government, or for the separate possession of a share
D of such an estate the partition of the estate or the separation of the
share shall be made by the Collector or any gazetted subordinate of
the Collector deputed by him in this behalf, in accordance with the law
(if any) for the time being in force relating to the partition, or the
separate possession of shares, of such estates."
E Order XX of the Code of Civil Procedure provides as to when a judgment
is said to be pronounced. Rule 7 thereof provides that a decree although
prepared at a later date shall relate back to the date of the judgment. A Civil
Court, in a suit for partition, may pass a preliminary decree in terms of Order
XX Rule 18 of the Civil Procedure Code, which reads ,as under :
F
"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, -

(I) if in so far as the decree relates to an estate assessed to the
payment of revenue to the Government, the decree shall
G
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.
H
HASHAM ABBAS SA YYAD v. USMAN ABBAS SA YYAD [S.B. SINHA, J.] 745

A
(2) if and in so far as such decree relates to any other immoveable
property or to movable property, the Court may, ifthe 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." B
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. [See Rachakonda Venkat Rao and Ors. v. R. C
Satya Bai (Dead) by L.Rs. and Anr., [2003] 7 SCC 452]

A final decree proceeding may be initiated at any point of time. No
!imitation 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. D
Order XXI of the Code of Civil Procedure, inter alia, provides that a
property can be put to sale only in execution of a decree.

Rules 13 and 14 of Order XXVI, which are also relevant for the pmpose,
read as under : E
"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 commi~sion to such
person as it thinks fit to make the partition or separation according F
to the rights as declared in such decree.

14. Procedure of Commissioner.- (I) 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 G
authorized thereto by the said order, award sums to be paid for the
purpose of equalizing 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 H
746 SUPREME COURT REPORTS [2006) SUPP. JO S.C.R.

A 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.
B
(3) Where the Court confirms or varies the report 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 it."
c The question came up for consideration before this Court in Shankar
Ba/want Lokhande (Dead) v. Chandrakant Shankar Lokhande and Anr.,
[ 199 5] 3 sec 413' wherein it was opined :

" .... 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
D 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
E character as a final decree. The final decree merely carries into fulfilment
the preliminary decree."

Taking note of the fact that a final decree proceeding is required to be
drawn upon a stamped paper, it was observed :

F "The crucial question for consideration is as to when the limitation
begins to run for filing an application to pass final decree on stamped
papers. There is no direct decision of this Court on this point.
Therefore, after hearing counsel at iength, we reserve the judgment in
the appeal and independently made detailed examination. There is
divergence of opinion in the High Courts on this question."
G
We are not oblivious of the fact that a somewhat different view as
regards period of limitation provided under Article 136 of the Limitation Act,
1963 was taken in W.B. Essential Commodities Supply Corpn. v. Swadesh
Agro Farming & Storage Pvt. ltd and Anr., [1999] 8 SCC 315, wherein, inter
G alia, it was held that the aforementioned observations do not apply to a
HA SHAM ABBAS SA YY AD v. USMAN ABBAS SA YYAD [S.B. SINHA, J.] 747

money decree. A
In Hameed Joharan (Dead) and Ors. v. Abdul Salam (Dead) by Lrs.
and Ors., [200 I] 7 SCC 573, Shankar Ba/want lokhande (supra) was
distinguished, inter alia, stating :

"23. Significantly, the contextual facts itselfin Lokhande's case (supra) B
has pr~mpted this Court to pass the order as it has (noticed above)
and as would appear from the recording in the order to wit: "Therefore,
executing court cannot receive the preliminary decree unless final
decree is passed as envisaged under Order 20 Rule 18 (2)."

24. In that view of the matter, reliance on the decision of lokhande's C
case (supra) by Mr. Mani appearing for the appellants herein cannot
thus but be said to be totally misplaced more so by reason of the fact
that the issue pertaining to furnishing of stamp paper and subsequent
engrossment of the final decree thereon did not fall for consideration
neither the observations contained in the judgment could be said to D
be germane to the issue involved therein. The factual score as noticed
in paragraph I 0 of the Report makes the situation clear enough to
indicate that the Court was not called upon to adjudicate the issue as
raised presently. The observations thus cannot, with due deference to
the learned Judge, but be termed to be an obiter dictum."

Yet again in Moo/ Chand and Ors. v. Dy. Director, Consolidation and
E
Ors., [1995] 5 SCC 631, a distinction was drawn between a case where an
appeal against a preliminary decree was filed and a case where a preliminary
decree had not been appealed against.

Recently_ in Dr. Chiranji Lal (D) by LRs. v. Hari Das (D) by LRs., (2005) F
IO SCC 746, it was held that the period of limitation for execution of a partition
decree would not be made contingent upon the engrossment of the decree
on the stamp paper.

We have referred to 1he aforementioned decisions to clear the air in
relation to one aspect of the matter, namely, although final decree may be G
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.

Although in regard to the period of limitation in execution of the final
decree proceeding there are somewhat different views, but all decisions of H
748 SUPREME COURT REPORTS [2006] SUPP. JO S.C.R.

A this Court clearly state that it is the final decree proceeding which would be
executable in nature. Without drawing a final decree proceeding, the court
could not have put the property on auction sale.

It is true that the house property was found to be an impartible one;
but a preliminary decree having been passed, the valuation thereof and final
B allotment of the property could have been done only in a final decree
proceeding. Only when final allotments were made or a determination is made
that the property should be put on auction sale, a final decree in respect
thereof should have been passed. It is appealable. Only a final decree could
be put to execution.
c A contention was raised that having regard to the conduct of the
appellant, we should not interfere, but the appellant herein has raised a
jurisdictional question. However, the appellant can be put to terms.

The core question is as to whether an order passed by a person lacking
D inherent jurisdiction would be a nullity. It will be so. The principles of
-
estoppel, waiver and acquiescence or even res judicata which are procedural
in nature would have no application in a case where an order has been passed
by the Tribunal/Court which has no authority in that behalf. Any order
passed by a court without jurisdiction would be coram non judice being a
nullity, the same ordinarily should not be given effect to. [See Chief Justice
E ofAndhra Pradesh and Anr. v. L. V.A. Dikshitulu and Ors., AIR (1979) SC 193
& MD Army Welfare Housing Organisation v. Sumanga/ Services (P) Ltd.,
[2004J s sec 619).

This aspect of the matter has recently been considered by this Court
F in Harshad Chiman Lal Modi v. DLF Universal Ltd and Anr., [2005) 7 SCC
791, in the following terms :

"We are unable to uphold the contention. The jurisdiction of a
court may be classified into several categories. The important
categories are (i) Territorial or local jurisdiction; (ii) Pecuniary
jurisdiction; and (iii) Jurisdiction over the subject matter. So far as
G territorial and pecuniary jurisdictions are concerned, objection to such
jurisdiction has to be taken at the earliest possible opportunity and
in any case at or before settlement of issues. The law is well settled
on the point that if such objection is not taken at the earliest, it cannot
be allowed to be taken at a subsequent stage. Jurisdiction as to
H subject matter, however, is totally distinct and stands on a different
HA SHAM ABBAS SA YY AD v. USMAN ABBAS SA YY AD [S.B. SINHA, J.] 749

footing. Where a court has no jurisdiction over the subject matter of A
the suit by reason of any limitation imposed by statute, charter or
commission, it cannot take up the cause or matter. An order passed
by a court having no jurisdiction is nullity."

[See also Zila Sahakari Kend1ya Bank Maryadit v. Shahjadi Begum & Ors.,
(2006) 9 SCALE 675 and Shahbad Co-op. Sugar Mills Ltd. v. Special Secretary B
to Govt. of Haryana & Ors., (2006) 11 SCALE 674 para 29]

We may, however hasten to add that a distinction must be made
between a decree passed by a court which has no territorial or pecuniary
jurisdiction in the light of Section 21 of the Code of Civil Procedure; and a
decree passed by a court having no jurisdiction in regard to the subject matter c
of the suit. Whereas in the fonner case, the appellate court may not interfere
with the decree unless prejudice is shown, ordinarily the second category of
the cases would be interfered with.

We are also not oblivious of some decisions of this Court where a D
property that had been put to auction and despite setting aside of the decree,
the court had not interfered with. [See Bombay Dyeing and Mfg. Co. Ltd.
v. Bombay Environmental Action Group and Ors., [2006] 3 SCC 459 para
329].

But in this case possession of the property has not been delivered to E
the auction purchaser.

The suit property is a residential house. The auction sale was wholly
illegal. The auction purchaser can otherwise be compensated on monetary
terms.
F
We, therefore, are of the opm1on that in the peculiar facts and
circumstances of the case, and with a view to do complete justice to the
parties, the appellant should be directed to deposit a sum of Rs.18 lakh within
four weeks from date before the learned Trial Judge, who shall immediately
allow Respondent Nos. I and 2 to withdraw a sum of Rs.9 lakh each towards
their shares in the property. G
The appellant furthermore shall deposit such amount in the court within
the aforementioned period towards payment of interest by way of
compensation @ 9% p.a. from the date of deposit till the actual payment is
made, which would be payable to the auction purchaser, which in our opinion H
750 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A is just and reasonable.

The principle that such direction can be issued by this Court in exercise
of its jurisdiction under Article 142 of the Constitution oflndia would appear
from a decision of this Court in Kishori Lal v. Sales Officer, District Land
Development Bank and Ors., (2006) 8 SCALE 521, wherein it was directed:
B
"However, with a view to do complete justice between the parties,
in our considered opinion, the appellant should be directed to deposit
the entire auction money with interest thereupon @6% per annum.
This order is being passed by us under Article 142 of the Constitution
of India. Such amount should be deposited within eight weeks from
c this date before respondent No. I, Sales Officer. On such deposit
being made, the auction shall stand set aside and the possession of
the property shall be restored to the appellant herein. However, in the
event the appellant fails and/or neglects to deposit the said amount
within the aforementioned period, these appeals shall stand dismissed."
D Following the said decision, herein also we would direct that in the
event of compliance of the aforementioned directions, the auction shall stand
set aside and the decree for partition shall stand satisfied. The appeal is
allowed subject to the aforementioned observations and directions. However,
in the facts and circumstances of the case, there shall be no order as to costs.
E
D.G. Appeal allowed.