IMPORTANT POINT
Suit is decreed or a preliminary decree is granted within a year or two, the final decree proceeding and execution takes decades for completion. This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system

ORDER :

Shircy V, J.

The short question which arises for consideration in this petition, is whether a preliminary decree can be executed without a final decree in a partition suit.

2. The brief facts of the case for determining the question which arise for consideration in this petition in nutshell are as under :-

The respondent Nos.1 to 6/plaintiffs have filed a suit for partition of the suit property against the appellant/the first defendant and the second defendant before the Sub Court, Ernakulam. Partition was sought for a property and a building situated therein. After contest the suit was decreed and a preliminary decree for partition was passed directing to divide the plaint schedule property and the building into 18 equal shares and the plaintiffs were declared as entitled to 16 shares jointly. Challenging the said judgment and decree RFA No.304 of 2009 was filed by the 1st defendant in the appeal the matter was referred for mediation and after several rounds of mediation talk, the parties have settled their dispute. Thus the appeal was disposed of accepting the report of the mediator and a judgment and decree was passed in terms of the settlement of agreement. Thereafter, a final decree application was filed by the plaintiffs as I.A.No.2891/2009, before the court below, but it was closed on 31.3.2015 by the learned Sub Judge observing that specific plots were allotted in the preliminary decree and therefore, there was no need to pass a final decree.

3. Feeling aggrieved and dissatisfied with the said order a review petition was filed by the plaintiffs. But the said application was also dismissed by the court below directing the petitioners to approach this court to engross the decree in the stamp paper or for permission to engross decree in a stamp paper before that court. Pursuant to the said order of the learned Sub Judge, this application has been filed by the petitioners to engross the decree in stamp paper.

4. Heard the learned counsel for the plaintiffs and the learned counsel for the defendants.

5. It is significant to note that partition of a property can be effected in several ways, he; by a decree of Court by dividing the property by metes and bounds, by a deed of partition, by a deed of release of right by a member relinquishing his/her right and also by an agreement either oral or written by the members. But it is pertinent to note that in a suit for partition what is determined in a preliminary decree is only the declaration of the rights of the parties and their shares. Therefore, the substantive legal rights alone are determined and final determination is yet to be finalized in further proceedings. Of-course a Preliminary Decree is not defined in definite terms in the Code of Civil Procedure (for short CPC). But a decree is defined under Section 2 (2) and we can find out what is a preliminary decree from Section 2(2) which reads as follows:

"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.

6. Explanation to Section 2 (2) of CPC clearly indicate that a preliminary decree does not dispose of the suit completely though it determines substantive rights of the parties but further proceedings have to be taken before the suit can be completely disposed of. Therefore, an adjudication is complete only in a final decree