Sri. Udaya Holla, Senior Counsel for Sri. H.M Mariyappa and Sri. C.A Krishnappa, Advocates for Petitioner.

Sri. T.V Vijaya Raghavan, Advocate for R1 & R2.

Bopanna, J.

The petitioner herein is the judgment debtor in Ex. Petition No. 1700/2008. He is calling in question the order dated 07.10.2009 as at Annexure-D to the petition. By the said order, the Executing Court has rejected the application filed by the petitioner herein to recall the delivery warrant and has thereafter reissued the delivery warrant with liberty to break open the lock, if the premises is under lock. The respondents herein are the decree holders.

2. The brief facts leading to the impugned order is that the petitioner herein who is the son of the first respondent and the brother of the second respondent had instituted a suit in O.S.No 793/2004 against the respondents herein and also his mother Smt. Nagarathna Patil and sister Smt. Nirmala S. Patil. The suit is one for partition and separate possession of the suit schedule properties. In the said suit, the respondents herein who were the defendants filed an application in I.A.No 10 under Order 39 Rules 1 and 2 of C.P.C (hereinafter referred to as ‘Code’) seeking for an order of mandatory injunction to remove the plaintiff from the suit ‘A’ schedule property. The Trial Court had dismissed the said application by its order dated 19.07.2008 The respondents were therefore before this Court in M.F.A.No 8071/2008 (CPC). This Court after detailed consideration, by its order dated 1.10.2008 allowed the appeal, set aside the impugned order of the Trial Court and granted an order of ad-interim mandatory injunction for removal of the petitioner herein from possession of the plaint ‘A’ schedule property and restoration of status-quo ante as existed prior to 28.03.2007 Though the petitioner herein questioned the order before the Hon'ble Supreme Court, the Special Leave Petition was not entertained.

3. In that light, the order dated 01.10.2008 in M.F.A.No 8071/2008 being available for execution was put into execution by the respondents herein by filing the Ex.Petition in No. 1700/2008. At an earlier point, an Objector had claimed certain right with regard to the property and after consideration and disposal of the same, the delivery warrant to take possession of the property has been issued. In the meanwhile, the suit in O.S.No 793/2004 itself came to be decreed in part by the preliminary decree dated 19.09.2009 whereby, the petitioner is also held entitled to one fourth share in the suit ‘A and ‘B’ schedule properties. It is in that context, the petitioner herein who is the judgment debtor in the pending execution petition filed the application for recall of the delivery warrant which came to be rejected. The petitioner is therefore before this Court contending that the interim order of mandatory injunction granted is not available for execution since the main suit itself is now disposed of.

4. Heard Sri Udaya Holla, Learned Senior Counsel on behalf of Sri H.M Mariyappa, Learned Counsel for the petitioner and Sri T.V Vijaya Raghavan, Learned Counsel for the respondents and perused the entire petition papers.

5. On hearing the respective Learned Counsel, it is seen that the question for consideration in this petition is with regard to the status of the interim order on the disposal of the main matter. Further it is also to be considered as to whether the passing of a preliminary decree should be considered as a conclusion of the suit terminating the entire proceedings so as to hold that the interim order has merged with the final outcome.

6. Having noticed the question that arises for decision making in this petition the judgment cited by the Learned Counsel needs consideration at the outset. The decision in the case of Shivaraya and Others v. Sharnapapa and Others AIR 1968 Mysore 283. cited by the Learned Senior Counsel would lay down the principle that the interim order passed by the High Court during the pendency of the revision petition would not operate after the disposal of the revision petition and the Munsiff will have no jurisdiction to enforce the interim order passed by the High Court after revision petition was disposed of. In the decision in the case of Rameshakre and Others v. Smt. Mangalabai Pralhad Akre and others AIR 2002 Bombay 487., it is held that the order of temporary injunction passed in favour of the defendant in the suit is not executable when the plaintiff has got the suit itself disposed of without prosecuting the same. In the first of the above cases, the order is an interim order passed in the revision petition before the High Court and though in the nature of an order for withdrawing the amount and taking possession of the property was an interim order to operate during the pendency of the revision petition and as such, the said order would not be available after the disposal of the revision petition itself. In the second of the above cases, in a suit of the plaintiff both the plaintiff as well as the defendant had filed separate applications seeking order of temporary injunction pending disposal of the suit. The application of the plaintiff was rejected while the prayer made by the defendant was granted. The grant of injunction though was for putting the defendant in possession of the property and to restrain from interference was in a suit where the nature of the suit was such that the passing of the judgment would mean the entire disposal of the suit. Hence, insofar as the above two cases with regard to the first principle that the interlocutory orders during the pendency of the main proceedings would merge with the main order and the same would not be available for execution subsequently, since the decision with regard to the rights of the parties would be available on the disposal of the main matter is a concluded position and there can be no dispute about the same.

7. However, the question that requires to be further addressed is; whether the position would be different if such interlocutory order is passed in a proceedings in which the passing of a preliminary decree and thereafter a final decree is contemplated under the code and in such circumstance, whether the passing of the preliminary decree could be considered as the disposal of the suit and would it alone wipe out the benefit of the interlocutory order and also whether the nature of the interlocutory order would have any bearing on the issue and in such circumstances whether such order could still be executed?

8. In this regard, the Learned Senior Counsel placed reliance on the decision in the case of Venkata Reddy and others v. Pethi Reddy AIR 1963 SC 992. to contend that the preliminary decree for partition is “final decision”. The decision in the case of Moolchand and others v. Deputy Director, Consolidation and others 1995 5 SCC 631. is relied on to contend that the preliminary decree would in fact declare or determine the rights in the property and the final decree is only to work out the rights and as such, the preliminary decree itself would bring the suit to an end and the proceedings thereafter is only by way of petition.

9. On the other hand, the Learned Counsel for the respondents relied on the decision in the case of Hasham Abbas Sayyad v. Usman Abbas Sayyad and others 2007 2 SCC 355 to contend that a preliminary decree does not bring the suit to an end, but further proceedings would have to be taken after the preliminary decree and the suit can be considered as completely disposed of only after such further adjudication is complete. The Learned Counsel in this regard also referred to Section 2(2) of the Code of Civil Procedure with specific reference to the explanation to contend that the passing of the preliminary decree does not conclude the suit.

10. On analysis of the above cited decisions, it is seen that in the case of Venkata Reddy and others, (supra) the Hon'ble Supreme Court was considering the nature and effect of a preliminary decree in the background of the provision contained in Section 28-A of the Provincial Insolvency Act, 1920, which stated with regard to the final decision by a competent Court as contained in first proviso to the said Section. In that context it is held that a decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions for the Code of Civil Procedure for reversal, modification or amendment. It is in the background of the requirement of the said enactment even a preliminary decree is held to be a final decision.

11. In the case of Moolchandand others, (supra) the Hon'ble Supreme Court was considering the effect of a preliminary decree in the light of the provision contained in Section 5(2) of the U.P Zameendari Abolition and Land Reforms Act, 1950. In that circumstance, what was required for the said provision to come into play was the declaration or determination of rights in the land and accordingly, the Hon'ble Supreme Court was of the view that once a preliminary decree is passed, the proceedings so far as declaration of rights or interests in the land are concerned come to an end and those rights are to be worked out by a final decree. As such, it further held that for the purpose of Section 5(2) of the said Act the pendency of final decree proceedings cannot be considered as pending since the rights are already determined. But in the said decision itself, the Hon'ble Supreme Court while taking note of the definition of “decree” as contained in Section 2(2), read with the provisions contained in Order 20 Rule 18(2) and also Order 26 Rule 14 of the C.O.C has held as follows:

“15. The definition of “decree” contained in Section 2(2) read with the provisions contained in Order 20 Rule 18(2) as also Order 26 Rule 14 of the Code indicate that a preliminary decree has first to be passed in a partition suit and thereafter a final decree is passed for actual separation of shares in accordance with the proceedings held under Order 26. There are, thus, two stages in a suit for partition. The first stage is reached when the preliminary decree is passed under which the rights of the parties in the property in question are determined and declared. The second stage is the stage when a final decree is passed which concludes the proceedings before the Court and the suit is treated to have come to an end for all practical purposes.”

(emphasis supplied)

12. In fact that is the very same view expressed by the Hon'ble Supreme Court in the subsequent decision in the case of Hasham Abbas Sayyad (supra) relied on by the Learned Counsel for the respondents. Hence, the effect of such observation with regard to the ‘suit’ coming to an end for all practical purposes when the final decree is passed and the proceedings are concluded is to be noticed for consideration of the facts evolving in the present case since as noticed above, the aspect of final decision had been discussed by the Hon'ble Supreme Court in the facts evolving in the said cases insofar as the effect of the preliminary decree in the background of the provisions of the relevant enactments which was being considered in that case. But in the present case, the conclusion of the ‘suit’ on the passing of the final decree would have a different dimension while considering the inter-se right of the parties since by the preliminary decree, the parties are held to be the co-owners being entitled to a share in the property and the ultimate fallout of the same is to be considered based on the nature of the interlocutory order that is passed. It would also be useful to refer to the view expressed by the Privy Council in the case of Jadunath Roy and others v. Parameswar Mullickand others AIR 1940 PC 11. wherein it is held as follows:

“A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties who are added after the preliminary decree have to be adjusted at the time of final decree”

(emphasis supplied)

13. Therefore, what can be deduced is that in all suits of the nature where passing of only one decree is provided under the Code, the suit would come to an end on the passing of the decree. In that circumstance, all interlocutory orders passed during the pendency of the suit would merge with the decree and would not have independent existence so as to seek for execution since the decree in itself would become executable. However, the suits in which the passing of two decrees namely, preliminary and final is provided for under the Code, even if the preliminary decree is passed, in law, the suit does not conclude until the final decree which is executable is passed, though the right of the party gets decided or determined by the preliminary decree. Even in such cases, in general, though the interlocutory orders would come to an end on the passing of the preliminary decree, such conclusion is to be reached depending on the nature and purport of the interlocutory order in the circumstance of each case. One such exception would be if such interlocutory order has a bearing on the passing of the final decree in terms of Order 20 Rule 18(2) and Order 26 Rule 14 of the Code. In such event, it would remain in force even after the passing of the preliminary decree and until the suit concludes by way of final decree.

14. In order to determine under which of the above class, the interlocutory order would fall, the purport of the order should be noticed in each case in the background of the nature of litigation. In this regard, distinction should also be made between an interlocutory order which is granted merely to preserve the status which exists on the date of the grant of interim order till the disposal of the suit as against an interlocutory order positively directing change of the status existing on the date of the grant of interim order to a status which existed on any date anterior to the date of the passing of the order and if such anterior status if restored would have a bearing on the actual entitlement by way of final decree as per the right determined under the preliminary decree. This is more so in the case of a suit for partition where the extent of right in the immovable property is declared in terms of Order 20 Rule 18(2) and the actual division which takes place in terms of Order 26 Rule 14 of the Code. In this regard, the law is well settled that while effecting partition for the purpose of final decree, the Court would be justified in awarding monetary compensation instead of physical division of the property where a partition cannot be made without destroying the intrinsic value of the property or where it would not be convenient to disturb the exclusive possession of one co-sharer. In such cases, it would be material as to the state of the building and as to which of the co-sharer is in possession as on the date of the passing of the final decree. In such situation, the positive interlocutory orders which are mandatory in nature to restore a position which existed earlier to passing of the order and was already put into execution before the passing of the preliminary decree, but had not yet been executed should be held to continue till the passing of the final decree as otherwise it would amount to traversity of justice and would amount to awarding premium to a person who may continue to disobey the order and evade execution till the passing of preliminary decree and take advantage of the final decree by his own default.

15. In this backdrop, the facts of the instant case would disclose that the suit is for partition wherein the plaintiff i.e, the petitioner herein sought for a share contending that the properties are joint family properties. Though the defendants i.e, the respondents herein had disputed the claim, the Trial Court by its preliminary decree dated 19.09.2009 has held that the petitioner herein is entitled to one fourth share in suit schedule ‘A’ and ‘B’ properties. The respondents herein have no doubt filed an appeal in R.F.A.No 992/2009 and the preliminary decree is stayed. Notwithstanding the same, even if the petitioner's determined right to one fourth share in the property is kept in view, the purport of the interlocutory mandatory injunction ordered in the instant case requires to be noticed. By the interlocutory order dated 01.10.2008 in M.F.A.No 8071/2008 (CPC), this Court with reference to materials on record has recorded a finding that the petitioner herein was not in possession of the suit ‘A’ schedule property prior to 28.03.2007 and as such the ad-interim order of mandatory injunction for removal of petitioner and to restore the status-quo ante as existed prior to 28.03.2007 is granted. The said order has attained finality and has been put into execution to take possession of the property in question which is a house property. Merely because the petitioner has succeeded in evading the execution by setting up an Objector who also failed, cannot now take advantage of the situation that a preliminary decree has been passed thereafter. If the principle determined above is noticed, the execution or otherwise of the nature of interlocutory mandatory injunction granted in the instant case would have a bearing on the final decree. The petitioner though is held entitled to one fourth share, the other defendants put together are entitled to three fourth share and the defence taken does not indicate conflict of interest amongst the defendants themselves and in any event, the respondents herein together are entitled to half share. Since the property in question is a residential building, the real issue would arise when the procedure in Order 26 Rule 14 of the Code comes into play and as such the instant case is one such case where the status which existed on an anterior date to the date of the interlocutory order should subsist as on the date on which the final decree would be made. As such, the interlocutory order in the instant case cannot be held to have merged in the preliminary decree and the executing Court would be justified in proceeding with the matter. The impugned order therefore does not call for interference.

16. In the result, the following:

i) The Civil Revision Petition is dismissed.

ii) The petitioner is however granted time till 15.11.2009 to voluntarily vacate and report to the executing Court, failing which the delivery warrant shall be executed.

iii) Parties to bear their own costs.