{"id":48435,"date":"2006-12-12T00:00:00","date_gmt":"2006-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hasham-abbas-sayyad-vs-usman-abbas-sayyad-ors-on-12-december-2006"},"modified":"2018-10-10T04:20:38","modified_gmt":"2018-10-09T22:50:38","slug":"hasham-abbas-sayyad-vs-usman-abbas-sayyad-ors-on-12-december-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hasham-abbas-sayyad-vs-usman-abbas-sayyad-ors-on-12-december-2006","title":{"rendered":"Hasham Abbas Sayyad vs Usman Abbas Sayyad & Ors on 12 December, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hasham Abbas Sayyad vs Usman Abbas Sayyad & Ors on 12 December, 2006<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  5721 of 2006\n\nPETITIONER:\nHasham Abbas Sayyad\n\nRESPONDENT:\nUsman Abbas Sayyad & Ors\n\nDATE OF JUDGMENT: 12\/12\/2006\n\nBENCH:\nS.B. Sinha & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n[Arising out of SLP (Civil) No.15035 of 2006]<\/p>\n
S.B. SINHA, J :\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tAppellant,  Respondent No.1 and  Respondent No.2 are brothers.  A
\nsuit for partition was filed by Respondent No.1.   A preliminary decree was
\npassed on 16.03.1999.  An application purported to be a Special Darkhast
\nwas filed by him on 29.11.1999.  An Advocate Commissioner was
\nappointed.  He was of the opinion that the property was impartible.  A
\nproposal was mooted that the property be put on sale in between the co-
\nsharers.   Appellant accepted the Commissioner’s report.  He however filed
\nan application for putting the said suit property on auction sale and for equal
\ndistribution of the proceeds thereof amongst the co-sharers.  An objection to
\nthe report of the said Advocate Commissioner was filed by the appellant.
\nThe court allowed the appellant to appoint an architect at his own cost.  He,
\nhowever, failed to comply with the said order.  A sale proclamation was
\nissued.  The appellant expressed his intention to buy the said property at the
\nvaluation made by the Government Valuer.  A valuation report was filed by
\nthe appellant on 04.05.2005 against which  Respondent No.1 filed an
\nobjection.  The appellant was called upon to deposit 2\/3rd of the amount
\nstated in the valuation report.  He failed to do so.  On or about 21.11.2005,
\nhe filed an application expressing his willingness to deposit shares of
\nRespondent Nos. 1 and 2.   He also sought for permission to deposit an
\namount of Rs.2.5 lakhs.  By an order dated 22.11.2005, the Trial Court held
\nthat since the property was put on auction sale, the highest bid would be
\ntreated to be the best price of the suit property and there was no need for
\nappointment of any valuer to ascertain the market price  thereof.  Another
\nobjection was filed by the appellant stating that in view of the facts and
\ncircumstances of the case,  he  should be allowed to buy the shares of other
\nso-sharers.  The said application was rejected by an order dated 14.12.2005.
\nBy an order dated 15.04.2006, the learned Trial Judge held that it was not
\nnecessary to initiate a final decree proceeding and the said purported Special
\nDarkhast filed by Respondent No.1 was treated to be an application therefor.
\nA writ petition filed by the appellant was dismissed by the High Court by
\nreason of the impugned order.\n<\/p>\n
\tThe short question which, inter alia, arises for consideration is as to
\nwhether the property in suit could be put on auction sale without initiating a
\nformal final decree proceeding.\n<\/p>\n
\t“Decree” has been defined in Section 2(2) of the  Code of Civil
\nProcedure, 1908  to mean :\n<\/p>\n
“Decree” means the formal expression of an adjudication
\nwhich, so far as regards the Court expressing it,
\nconclusively determines the rights of the parties with
\nregard to all or any of the matters in controversy in the
\nsuit and may be either preliminary or final, it shall be
\ndeemed to include the rejection of a plaint and the
\ndetermination of any question within section 144, but
\nshall not include <\/p>\n
(a)\tany adjudication from which an appeal lies as an
\n\tappeal from an order, or<\/p>\n
(b)\tany order of dismissal for default.\n<\/p>\n
Explanation.- A decree is preliminary when further
\nproceedings have to be taken before the suit can be
\ncompletely disposed of.  It is final when such
\nadjudication completely disposes of the suit.  It may be
\npartly preliminary and partly final;”\n<\/p>\n
\tWe may also notice Section 54 of the Code of Civil Procedure which
\nis in the following  terms :\n<\/p>\n
“54. Partition of estate or separation of share.-
\nWhere the decree is for the partition of an undivided
\nestate assessed to the payment of revenue to the
\nGovernment, or for the separate possession of a share of
\nsuch an estate the partition of the estate or the separation
\nof the share shall be made by the Collector or any
\ngazetted subordinate of the Collector deputed by him in
\nthis behalf, in accordance with the law (if any) for the
\ntime being in force relating to the partition, or the
\nseparate possession of shares, of such estates.”\n<\/p>\n
\tOrder XX of the Code of Civil Procedure provides as to when a
\njudgment is said to be pronounced.  Rule 7 thereof provides that a decree
\nalthough prepared at a later date shall relate back to the date of the judgment.
\nA Civil Court, in a suit for partition, may pass a preliminary decree in terms
\nof Order XX Rule 18 of the Civil Procedure Code, which reads as under :\n<\/p>\n
“18.  Decree in suit for partition of property or separate
\npossession of a share therein.-  Where the Court passes a
\ndecree for the partition of property or for the separate
\npossession of a share therein, then, –\n<\/p>\n
(1)\tif in so far as the decree relates to an estate
\n\tassessed to the payment of revenue to the
\n\tGovernment, the decree shall declare the rights of
\n\tthe several parties interested in the property, but
\n\tshall direct such partition or separation to be made
\n\tby the Collector, or any gazetted subordinate of the
\n\tCollector deputed by him in this behalf, in
\n\taccordance with such declaration and with the
\n\tprovisions of section 54.\n<\/p>\n
(2)\tif and in so far as such decree relates to any other
\n\timmoveable property or to movable property, the
\n\tCourt may, if the partition or separation cannot be
\n\tconveniently made without further inquiry, pass a
\n\tpreliminary decree declaring the rights of the
\n\tseveral parties, interested in the property and
\n\tgiving such further directions as may be required.”\n<\/p>\n
\tPreliminary decree declares the rights and liabilities of the parties.
\nHowever, in a given case a decree may be both preliminary and final.\n<\/p>\n
\tThere can be more than one final decrees.  A decree may be partly
\npreliminary and partly final. [See Rachakonda Venkat Rao and Others v. R.
\nSatya Bai (Dead)<\/a> by L.Rs. and Another  (2003) 7 SCC 452] <\/p>\n
\tA final decree proceeding may be initiated at any point of time.  No
\nlimitation is provided therefor.  However, what can be executed is a final
\ndecree, and not a preliminary decree, unless and until final decree is a part of
\nthe preliminary decree.\n<\/p>\n
\tOrder XXI of the Code of Civil Procedure, inter alia,  provides that a
\nproperty can be put to sale only in execution of a decree.\n<\/p>\n
\tRules 13 and 14 of Order XXVI, which are also relevant for the
\npurpose, read as under :\n<\/p>\n
“13.\tCommission to make partition of immovable
\nproperty.- Where a preliminary decree for partition has
\nbeen passed, the Court may, in any case not provided for
\nby section 54, issue a commission to such person as it
\nthinks fit to make the partition or separation according to
\nthe rights as declared in such decree.\n<\/p>\n
14.\tProcedure of Commissioner.- (1) The
\nCommissioner shall, after such inquiry as may be
\nnecessary, divide the property into as many shares as
\nmay be directed by the order under which the
\ncommission was issued, and shall allot such shares to the
\nparties, and may, if authorized thereto by the said order,
\naward sums to be p-aid for the purpose of equalizing the
\nvalue of the shares.\n<\/p>\n
\t(2) The Commissioner shall then prepare and sign
\na report or the Commissioners (where the commission
\nwas issued to more than one person and they cannot
\nagree) shall prepare and sign separate reports appointing
\nthe share of each party and distinguishing each share (if
\nso directed by the said order) by metes and bounds.  Such
\nreport or reports shall be annexed to the commission and
\ntransmitted to the Court; and the Court, after hearing any
\nobjections which the parties may make to the report or
\nreports, shall confirm, vary or set aside the same.\n<\/p>\n
\t(3)\tWhere the Court confirms or varies the
\nreport it shall pass a decree in accordance with the same
\nas confirmed or varied; but where the Court sets aside the
\nreport or reports it shall either issue a new commission or
\nmake such other order as it shall think it.”\n<\/p>\n
\tThe question came up for consideration before this Court in Shankar
\nBalwant Lokhande (Dead) v. Chandrakant Shankar Lokhande and Another<\/a>
\n(1995) 3 SCC 413], wherein it was opined :\n<\/p>\n
“Both the decrees are in the same suit. Final decree
\nmay be said to become final in two ways: (i) when the
\ntime for appeal has expired without any appeal being
\nfiled against the preliminary decree or the matter has
\nbeen decided by the highest court; (ii) when, as regards
\nthe court passing the decree, the same stands completely
\ndisposed of. It is in the latter sense the word “decree” is
\nused in Section 2(2) of CPC. The ap-pealability of the
\ndecree will, therefore, not affect its character as a final
\ndecree. The final decree merely carries into fulfilment the
\npreliminary decree.”\n<\/p>\n
\tTaking note of the fact that a final decree proceeding is required to be
\ndrawn upon a stamped paper, it was observed :\n<\/p>\n
\t“The crucial question for consideration is as to
\nwhen the limitation begins to run for filing an application
\nto pass final decree on stamped papers. There is no direct
\ndecision of this Court on this point. Therefore, after
\nhearing counsel at length, we reserve the judgment in the
\nappeal and independently made detailed examination.
\nThere is divergence of opinion in the High Courts on this
\nquestion.”\n<\/p>\n
\tWe are not oblivious of the fact that a somewhat different view as
\nregards period of limitation provided under Article 136 of the Limitation
\nAct, 1963 was taken in W.B. Essential Commodities Supply Corpn. v.
\nSwadesh Agro Farming & Storage Pvt. Ltd. and Another<\/a> [(1999) 8 SCC
\n315], wherein, inter alia, it was held that the aforementioned observations do
\nnot apply to a money decree.\n<\/p>\n
\tIn Hameed Joharan (Dead) and Others v. Abdul Salam (Dead)<\/a> by Lrs.
\nand Others [(2001) 7 SCC 573], Shankar Balwant Lokhande (supra)  was
\ndistinguished, inter alia, stating :\n<\/p>\n
“23. Significantly, the contextual facts itself in
\nLokhande’s case (supra) has prompted this Court to pass
\nthe order as it has (noticed above) and as would appear
\nfrom the recording in the order to wit: “Therefore,
\nexecuting court cannot receive the preliminary decree
\nunless final decree is passed as envisaged under Order 20
\nRule 18 (2).”\n<\/p>\n
24. In that view of the matter, reliance on the decision of
\nLokhande’s case (supra) by Mr. Mani appearing for the
\nappellants herein cannot thus but be said to be totally
\nmisplaced more so by reason of the fact that the issue
\npertaining to furnishing of stamp paper and subsequent
\nengrossment of the final decree thereon did not fall for
\nconsideration neither the observations contained in the
\njudgment could be said to be germane to the issue
\ninvolved therein. The factual score as noticed in
\nparagraph 10 of the Report makes the situation clear
\nenough to indicate that the Court was not called upon to
\nadjudicate the issue as raised presently. The observations
\nthus cannot, with due deference to the learned Judge, but
\nbe termed to be an obiter dictum.”\n<\/p>\n
\tYet again in Mool Chand and Others v. Dy. Director, Consolidation
\nand Others<\/a> [(1995) 5 SCC 631], a distinction was drawn between a case
\nwhere an appeal against a preliminary decree was filed and a case where a
\npreliminary decree had not been appealed against.\n<\/p>\n
\tRecently in Dr. Chiranji Lal (D) by LRs. v. Hari Das (D) by LRs.
\n[(2005) 10 SCC 746], it was held that the period of limitation for execution
\nof a partition decree would not be made contingent upon the engrossment of
\nthe decree on the stamp paper.\n<\/p>\n
\tWe have referred to the aforementioned decisions to clear the air in
\nrelation to one aspect of the matter, namely, although final decree may be
\nrequired to be duly stamped,  or the same may not have anything to do for
\nthe purpose of computing the period of limitation, the preliminary decree as
\nsuch cannot be  put to  execution.\n<\/p>\n
\tAlthough in regard to the period of limitation in execution of the final
\ndecree proceeding there are somewhat different views, but all decisions of
\nthis Court clearly state that it is the final decree proceeding which would be
\nexecutable in nature.  Without drawing a final decree proceeding, the court
\ncould not have put the property on auction sale.\n<\/p>\n
\tIt is true that the house property was found  to be an impartible one;
\nbut a preliminary decree having been passed, the valuation thereof and final
\nallotment of the property could have been done only in a final decree
\nproceeding.  Only when final allotments were made or a determination is
\nmade that the property should be put on auction sale, a final decree in
\nrespect thereof should have been passed.  It is appealable.  Only a final
\ndecree could be put to execution.\n<\/p>\n
\tA contention was raised that having regard to the conduct of the
\nappellant, we should not interfere, but the appellant herein has raised a
\njurisdictional question.  However, the appellant can be put to terms.\n<\/p>\n
\t The core question is as to whether an order passed by a person
\nlacking inherent jurisdiction would be a nullity.  It will be so.  The principles
\nof estoppel, waiver and acquiescence or even res judicata which are
\nprocedural in nature would have no application in a case where an order has
\nbeen passed by the Tribunal\/Court which has no authority in that behalf.
\nAny order passed by a court without jurisdiction would be coram non judice
\nbeing a nullity, the same ordinarily should not be given effect to.  [See Chief
\nJustice of Andhra Pradesh and Another v. L.V.A. Dikshitulu and Others<\/a> –
\nAIR 1979 SC 193 &  MD Army Welfare Housing Organisation v. Sumangal
\nServices (P) Ltd.<\/a> (2004) 8 SCC 619].\n<\/p>\n
\tThis aspect of the matter has recently been considered by this Court in
\nHarshad Chiman Lal Modi v. DLF Universal Ltd. and Another<\/a> [(2005) 7
\nSCC 791], in the following terms :\n<\/p>\n
\t“We are unable to uphold the contention. The
\njurisdiction of a court may be classified into several
\ncategories. The important categories are (i) Territorial or
\nlocal jurisdiction; (ii) Pecuniary jurisdiction; and (iii)
\nJurisdiction over the subject matter. So far as territorial
\nand pecuniary jurisdictions are concerned, objection to
\nsuch jurisdiction has to be taken at the earliest possible
\nopportunity and in any case at or before settlement of
\nissues. The law is well settled on the point that if such
\nobjection is not taken at the earliest, it cannot be allowed
\nto be taken at a subsequent stage. Jurisdiction as to
\nsubject matter, however, is totally distinct and stands on a
\ndifferent footing. Where a court has no jurisdiction over
\nthe subject matter of the suit by reason of any limitation
\nimposed by statute, charter or commission, it cannot take
\nup the cause or matter. An order passed by a court having
\nno jurisdiction is nullity.”\n<\/p>\n
[See also Zila Sahakari Kendrya Bank Maryadit v. Shahjadi Begum & Ors.<\/a>
\n2006 (9) SCALE 675 and Shahbad Co-op. Sugar Mills Ltd. v. Special
\nSecretary to Govt. of Haryana & Ors.  2006 (11) SCALE 674  para 29]<\/p>\n
\tWe may, however hasten  to add that a distinction must be made
\nbetween a decree passed by a court which has no territorial or pecuniary
\njurisdiction in the light of Section 21 of the Code of Civil Procedure; and a
\ndecree passed by a court having no jurisdiction in regard to the subject
\nmatter of the suit.  Whereas in the former case, the appellate court may not
\ninterfere with the decree unless prejudice is shown, ordinarily the second
\ncategory of the cases would be interfered with.\n<\/p>\n
\tWe are also not oblivious of some decisions of this Court where a
\nproperty that had been put to auction and despite setting aside of the decree,
\nthe court  had not interfered with. [See  Bombay Dyeing and Mfg. Co. Ltd.
\nLtd. v. Bombay Environmental Action Group and Others<\/a>  (2006) 3 SCC 459
\n para 329].\n<\/p>\n
\tBut in this case possession of the property has not been delivered to
\nthe auction purchaser.\n<\/p>\n
\tThe suit property is a residential house.  The auction sale was wholly
\nillegal.  The auction purchaser can otherwise be compensated on monetary
\nterms.\n<\/p>\n
\tWe, therefore, are of the opinion that in the peculiar facts and
\ncircumstances of the case,  and with a view to do complete justice to the
\nparties, the appellant should be directed to deposit a sum of Rs.18 lakhs
\nwithin four weeks from date before the learned Trial Judge, who shall
\nimmediately allow Respondent Nos.1 and 2 to withdraw a sum of  Rs.9
\nlakhs each towards their shares in the property.\n<\/p>\n
\tThe appellant furthermore shall deposit such amount in the court
\nwithin the aforementioned period towards payment of interest by way of
\ncompensation @ 9% p.a. from the date of deposit till the actual payment is
\nmade, which would be payable to the auction purchaser, which in our
\nopinion is just and reasonable.\n<\/p>\n
\tThe principle that such direction can be issued by this Court in
\nexercise of its jurisdiction under Article 142 of the Constitution of India
\nwould appear from a decision of this Court in Kishori Lal v. Sales Officer,
\nDistrict Land Development Bank and Ors.<\/a> [2006 (8) SCALE 521], wherein
\nit was directed :\n<\/p>\n
“However, with a view to do complete justice
\nbetween the parties, in our considered opinion, the
\nappellant should be directed to deposit the entire auction
\nmoney with interest thereupon @6% per annum.  This
\norder is being passed by us under Article 142 of the
\nConstitution of India.  Such amount should be deposited
\nwithin eight weeks from this date before respondent
\nNo.1, Sales Officer.  On such deposit being made, the
\nauction shall stand set aside and the possession of the
\nproperty shall be restored to the appellant herein.
\nHowever, in the event the appellant fails and\/or neglects
\nto deposit the said amount within the aforementioned
\nperiod, these appeals shall stand dismissed.”\n<\/p>\n
Following the said decision, herein also we would direct that in the
\nevent of compliance of the aforementioned directions, the auction shall stand
\nset aside and the decree for partition shall stand satisfied.  The appeal is
\nallowed subject to the aforementioned observations and directions.   However,
\nin the facts and circumstances of the case, there shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hasham Abbas Sayyad vs Usman Abbas Sayyad & Ors on 12 December, 2006 Author: S.B. Sinha Bench: S.B. Sinha, Markandey Katju CASE NO.: Appeal (civil) 5721 of 2006 PETITIONER: Hasham Abbas Sayyad RESPONDENT: Usman Abbas Sayyad & Ors DATE OF JUDGMENT: 12\/12\/2006 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-48435","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHasham Abbas Sayyad vs Usman Abbas Sayyad & Ors on 12 December, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hasham-abbas-sayyad-vs-usman-abbas-sayyad-ors-on-12-december-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hasham Abbas Sayyad vs Usman Abbas Sayyad & Ors on 12 December, 2006 - 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