The court reaffirmed that final decrees must adhere to preliminary decisions regarding property division, excluding unrelated areas like terraces unless explicitly stated.

JUDGMENT

This appeal is filed challenging the final decree passed by Sub Court, Ernakulam (for short ‘the court below’) on 31.10.2018 in I.A.No.1112/2018 in O.S.No.591/2002. The plaint schedule property in the suit is the first floor of a three storied building bearing Door No.40/406, situated in 4.800 Cents of land comprised in Survey No.703/23 (Re Survey No.2575/4) of Ernakulam Village, Ernakulam District at Woodlands junction, on the western side of M.G.Road, Ernakulam described as ‘D’ schedule in partition deed No.2788/2000 of S.R.O., Ernakulam.

2. A preliminary decree was passed in O.S.No.591/2002 on 29.10.2005 which reads:

“10. In the result, the suit is decreed as follows:-

a) The plaintiff is allowed to realise an amount of Rs.63,341.50 (Rupees Sixty Three Thousand Three Hundred and Forty One and paise Fifty only) with interest @ 6% per annum from the date of suit till realisation from the defendant and his assets.

b) A preliminary decree is hereby passed allowing the plaintiff to take out a commission within one month from the date of this decree for the sale of the plaint schedule property as stipulated in Clause 33 & 36 of Ext.A1 partition deed. The Commissioner thus appointed shall see whether any of the sharers in Ext.A1 is willing to purchase the plaint schedule property by issuing written notice and if nobody is coming forward the property shall be sold in public auction.

c) The plaintiffs together and the defendant will be entitled to half of the sale proceeds.

d) Until the sale is effected the Commissioner will put in auction the right of renting out the plaint schedule premises for exhibition among the plaintiffs and defendant and the bid amount will be shared equally between the plaintiffs together and defendant.

e) Having considering the close relationship between the parties, no order as to costs.”

3. The above preliminary decree was challenged both by the plaintiffs and the defendant by separate appeals filed respectively as R.F.A.No.86/2006 and R.F.A.No.192/2006. This Court allowed both appeals in part and the decree and the judgment of the court below in so far as it directs sale of the plaint schedule property and sharing of sale proceeds in the proportion 50:50 respectively to plaintiffs jointly and to the defendant is set aside. A fresh preliminary decree for partition was passed directing partition of the plaint schedule property, allotting its southern and northern half respectively to plaintiffs and defendant. The preliminary decree passed in respect of money was confirmed. Following the passing of the preliminary decree as above, I.A.No.1112/2018 was filed under Order XX Rule 18 of the Code of Civil Procedure, 1908 (for short ‘CPC’) by the defendant in O.S.No.591/2002 seeking to pass a final decree in terms of the preliminary decree.

4. An Advocate Commissioner was appointed to effect partition of the preliminary decree schedule property. The Advocate Commissioner filed report and sketches A to D. Both plaintiffs and defendant filed objection to the Commission report filed by the Advocate Commissioner. The plaintiffs in the suit, who are respondents in the above I.A raised objections to the Commission report and sketches. It was contended that sketch B being prepared in accordance with the preliminary decree ought to have been accepted, that the area relinquished is only the staircase area, that it does not takes within it the yellow coloured portion shown in Ext.C1(b) sketch as landing area that the 1000sq. Feet area of the plaint schedule property sought to be partitioned would also takes within the enclosed portion in the north eastern portion of the 1st floor forming