The main legal point established in the judgment is that a final decree proceeding is necessary for the valuation and final allotment of the property in a partition suit, and only a final decree can be put to execution.

Judgment

S.B. SINHA, J. - Leave granted.

2. The appellant, Respondent 1 and Respondent 2 are brothers. A suit for partition was filed by Respondent 1. A preliminary decree was passed on h 16 - 3 - 1999. An application purported to be a special darkhast was 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. The appellant accepted the Commissioners report. He however filed an application for putting the said suit property on auction - sale and for equal distribution of the proceeds 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 against which Respondent 1 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 Respondents 1 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 - 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 co - sharers. The said application was rejected by an 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 1 was treated to be an application there for. A writ petition filed by the appellant was dismissed by the High Court by reason of the impugned order.

3. 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.

4. "Decree" has been defined in Section 2(2) of the Code of Civil Procedure, 1908 to mean:

"2. (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;"

5. 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 a the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share 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 b estates. "

6. Order 20