Chapter 10

Decree and Execution

Introduction

A suit for partition is either dismissed or is decreed with the relief of partition. Since it is a unique suit in which all the parties are co-owners, all of them are also decree-holders. Therefore in principle any co-owner can seek execution of decree of partition.

Decree of divorce

Marriages can be based on contract or, they can be based on sacrament. No doubt, marriage as understood in civilised society was mostly based on religious customs. Religion treated marriage as a sacrament. Marriages were made in Heaven and therefore, not capable of being brought to an end by human beings. This almost universal idea prevailed for a long period in Man's history. The concept of divorce existed even in Roman times and was certainly accepted by the Quran. However, it was unknown to Hindu Law and it was also unknown to Christian Law. A decree of divorce was originally granted by the Pope in the form of divorce a vinculo matrimonii. No Court whatsoever, either Civil or Criminal or Ecclesiastical could grant such a decree. King Henry VIII of England was anxious to divorce his wife who was the sister of the King of Spain. The Pope refused to oblige him, so Henry was forced to form his own Church called the Church of England and was able to get a divorce to marry Anne Boleyn. This divorce eventually led historically to the concept of the Ecclesiastical Courts granting a divorce which was generally known as a divorce a mensa et thero. For a long time in English legal history, a divorce could only be granted by the Ecclesiastical Courts and not by the ordinary Courts. The form of the divorce was a decree. The ordinary English Courts gave their decisions through Judgements, but there was no decree as is understood in Indian Law. The decision of the Court operated as enforceable decree. Even the Letters Patent issued by the King to create the Indian High Courts used the word ''judgement'' and not the word ''decree'' Thus, it was a matter of historical evolution that the term decree was used in matrimonial decisions recorded by the Church; the 'decree' was a kind of edict, whereas the Civil Courts used the term 'judgement'. When the English legal system was reformed and the jurisdiction to deal with matrimonial cases was withdrawn from the Ecclesiastical Courts and given to the ordinary Civil Courts for historical reasons, the term 'decree' continued to prevail as far as divorces and judicial separations were concerned. When a person approached the Matrimonial Courts, what he sought was a decree for divorce or nullity etc. if he got such a decree, the marriage came to an end. If he failed to get such a decree, then the marriage subsisted.645

Decree in favour of joint family

When a decree is passed in favour of a joint family the same has to be treated as a decree in favour of all the members of the joint family in which event it becomes a joint decree. Where a joint decree for actual possession of immovable property is passed and one of the coparceners assigns or transfers his interest in the subject-matter of the decree in favour of the judgment-debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining part of the decree. In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, a decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit.646

Joint decree

A joint decree can be executed as a whole since it is not divisible and it can be executed in part only where the shares of the decree-holders are defined or those shares can be predicted or the share is not in dispute. Otherwise the executing court cannot find out the shares of the decree-holders and dispute between joint decree-holders is foreign to the provisions of Section 47 CPC. Order XXI Rule 15 CPC enables a joint decree-holder to execute a decree in its entirety but if whole of the decree cannot be executed, this provision cannot be of any avail. In that event also, the decree-holder will have to work out his rights in an appropriate suit for partition and obtain necessary relief thereto.647

Decree against father

If no provision has been made for discharge of debt at the time of partition, a son is liable to pay pre-partition debt of his father unless such debt is not awyawarik or immoral. Therefore a decree against father can be executed against the son.648

Personal decree against coparcener

Where a personal money decree was granted against a coparcener in respect of a debt incurred by junior member found to be immoral, it was held that the auction purchaser of property is entitled to claim partition of property by way of suit but he has no right to sue other members of the joint family.649

Modification of decree

In a partition suit, even after the preliminary decree, if on the basis of subsequent events, there are changes in the situation including changes in the grouping of shares amongst the parties or acquisition of shares of other co-sharers by some of the co-sharers for which the decree for partition can be suitably moulded, the Court can and should do so and in such circumstances the variation of the preliminary decree can always be made. There is nothing in the Civil P.C. which prohibits passing of more than one preliminary decree if in the facts and circumstances of a case and in consideration of equity and justice, such variation of the preliminary decree is warranted.650

Though the final decree is only by way of working out in detail the principles laid down in the preliminary decree, the proceedings which take place between the two decrees are in the nature of continuation of the suit for the purpose of carrying out the directions contained in the preliminary decree. Therefore a preliminary decree can be modified by court.651

In regard to the principle of finality of decree vis-à-visits modification, it has been observed by the Supreme Court as under:

'It is not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended unless what the learned Judges meant was modified or amended in appeal or in review of in revision or in exceptional circumstances by resorting to the powers conferred by Sections 151 and 152 of the Code of Civil Procedure. If that is what the High Court meant then every decree passed by a Court including decrees passed in cases which do not contemplate making of a preliminary decree are liable to be "modified and amended". 'Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to decree at all. That is not the law. 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 of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree — the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree.'652

Sale in execution

Where joint family property is sold in execution of decree, the persons who were not born on the date of sale are also entitled to challenge it.653

Foreign judgement

A foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between the parties under whom they or any of them claim litigating under the same title except:—

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of (India) in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud; and

(f) where it sustains a claim founded on a breach of any law in force in (India).

When none of the exceptions detracting from the binding nature of the foreign judgments has either been pleaded or remotely sought to be proved, there is no choice with this Court but to hold that, in the facts and circumstances of this case, judgments given by the foreign Court are binding.654