Jennifer Messias vs Leonard G Lobo

Court

Supreme Court of India

Date

18 May 2026

Case No.

Civil Appeal No(s). 7980-7981 of 2026

Result

Allowed

Bench

K.V. Viswanathan, Sarasa Venkatanarayana Bhatti

Citation

[2026] 6 S.C.R. 410 : 2026 INSC 502

Acts & Sections

CPC Partition Act

Issue for consideration

Whether the Decree in question is a simple Preliminary Decree, or whether the Trial Court, made it both a Preliminary and a Final Decree; whether the same could be put to Execution; whether the High Court erred in interdicting the Execution Proceedings holding that before putting the Decree to Execution, a Final Decree was necessary.

Headnote

Code of Civil Procedure, 1908 – s.2(2), Or.XX r.18, Or.XX r.12 – Preliminary decree when itself final decree – Appellant filed Suit for partition and separate possession of the Subject Flat – Preliminary Decree passed by Trial Court inter alia directing the Advocate Commissioner to work out the division of the subject flat by metes and bounds however, in case such partition cannot be made the Subject Flat be sold, and the sale consideration be divided between the parties – Advocate Commissioner reported that the physical division of the Subject Flat by metes and bounds was not possible – Executing Court directed the public auction of the Subject Flat in terms of the Preliminary Decree – Petition filed by Respondent seeking direction to restrain the Executing Court from proceeding with the Execution – High Court interdicted the Execution Proceedings holding that a preliminary decree cannot be executed directly and the existence of a final decree is sine qua non for execution and; that the Appellant was at liberty to approach the trial Court for grant of final decree in terms of preliminary decree – Interference with:

Held: High Court proceeded by the nomenclature of the Decree without appreciating that, in certain circumstances, an Order made u/ss.2 to 4 of the Partition Act is also a deemed Decree within the meaning of s.2(2), CPC – Orders impugned do not refer to the clauses in the Decree – The conclusion reached by the High Court is that, before putting the same to Execution, a Final Decree was necessary – The Decree, 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 Flat – 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, the Decree should be construed as indicated – Termination of Execution Proceedings was an illegal exercise of jurisdiction, set aside – Execution Case restored – Partition Act – ss.2, 4. [Paras 16, 17] Preliminary Decree; Final Decree – Object, purpose and scope, discussed. [Para 13]

Judgment S.V.N. Bhatti, J. 1. Leave granted. 2. The Civil Appeals arise from Orders dated 27.07.2023 in Miscellaneous Petition No. 2005 of 2022 and 20.03.2025 in the Review Petition No. 947 of 2023, in the High Court of Madhya Pradesh at Jabalpur. The impugned Orders, in effect, have set aside the Execution Proceedings pending before the IInd Additional Judge, Jabalpur, in Civil Suit No. 7A/2011. The outcome of the adjudication appears simple, but the Civil Appeals exemplify the Comedy of Errors.1 The polemic, which is the subject of the final adjudication, is whether the Decree dated 13.0

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