Order Passed U/S.2 To 4 Of Partition Act Is Also Deemed Decree As Per Sec.2(2) Of CPC: Supreme Court Restores Execution Petition

The Civil Appeals before the Apex Court arose from Orders of the Madhya Pradesh High Court setting aside the Execution Proceedings.

The Division Bench of Justice K.V. Viswanathan and Justice S.V.N. Bhatti stated, “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.”

AOR Abhishek Gulatee represented the Appellant, while Advocate Siddharth R. Gupta represented the Respondent.

Factual Background

The appellant Jennifer and one Peter Messias got married in 1980. In 1991, the couple purchased a flat in Amba Apartment, Civil Line, Jabalpur, from their combined income. The couple was judicially separated in 2003. Peter Messias was stated to have possession of the Subject Matter purchased by the couple. In 2014, Peter Messias died. The Respondent claimed to be representing the interests of the deceased Peter Messias, on the basis of a registered Will. The Respondent remained in possession of the subject matter of the Appeals by claiming through the late Peter. The appellant filed a civil suit for partition and separate possession of the Subject Matter. In 2012, the Trial Court passed a Preliminary Decree.

The Appellant filed an Execution Application to execute the Decree in the Civil Suit. In 2013, the Execution Petition was dismissed. The Appellant was prompted to file an application under Order XX Rule 18 of the Code of Civil Procedure, 1908 (CPC). The Respondent was brought on record as the legal representative of the deceased Peter in the Execution Petition. In 2016, the High Court dismissed the Civil Revision challenging the Respondent’s impleadment. The Executing Court directed the public auction of the Subject Matter. 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 praying for a direction to restrain the Executing Court from proceeding with the Execution. Through the impugned Order, the High Court interdicted the Execution Proceedings and left open for consideration of remedies available to the Appellant. The Appellant filed a Review Petition, which was dismissed. It was in such circumstances that the Civil Appeals came to be filed at the instance of the Plaintiff/Decree Holder.

Reasoning

The Bench, at the outset, explained that 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 Bench was of the view that the High Court had 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 Bench noted that the Decree dated April 13, 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”, it added.

Thus, restoring the Execution Case and allowing the appeals, the Bench ordered the Advocate Commissioner to conduct the auction and apportion the same between the parties. “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”, it directed.

Cause Title: Jennifer Messias v. Leonard G Lobo (Neutral Citation: 2026 INSC 502)

Appearance

Appellant: AOR Abhishek Gulatee, Advocate Naveen Chaturvedi

Respondent: Advocates Siddharth R. Gupta, Pramod Thakre, Rahul Rawat, AOR Mrigank Prabhakar, Advocates Aman Agarwal, Shantanu Sharma, Surbhi Saxena, Uddaish Palya, Astha Singh

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