HASHAM ABBAS SAYYAD versus USMAN ABBAS SAYYAD AND ORS.

Citation: [2006] SUPP. 10 S.C.R. 740 · Decided: 12-12-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
HASHAM ABBAS SA YY AD 
v. 
USMAN ABBAS SA YY AD AND ORS. 
DECEMBER 12, 2006 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
Code of Civil Procedure, 1908-ss. 2, 54, 20 r.18 0. 21 r. 13, 14, 0. 
26 rr. 13, 14-Court cannot put the property on auction sale without drawing 
C final decree proceedings-After passing a preliminary decree for partition, 
steps in execution not to be taken like appointment of local commissioner 
for division by metes and bounds or auction sale without first passing of a 
final decree-Preliminary decree only declares rights of parties-For 
execution there must be a final decree which must be on stamp paper. 
D 
Appellant and respondent nos. 1 and 2 are brothers. Respondent No.I 
filed partition suit. Preliminary decree was passed on 16.3.1999. A special 
petition was filed on 29.11.1999. Then a Local Commissioner was appointed 
who gave the report that the property was impartible. A sale proclamation 
was issued. The appellant expressed his intention to buy the said property. He 
was called upon to deposit money which he failed to pay. On 15.4.2006, trial 
E Court held that the Special petition on 29.11.2006 be treated as an application 
for final decree. Appellant filed writ petition against it, which was dismissed. 
F 
In appeal to this Court, the question for consideration is "whether suit 
property could be p_ut to auction sale without initiating final decree 
proceedings". 
Allowing the appeal subject to certain observation and directions, the 
Court 
HELD: 1. A final decree proceeding may be initiated at any point of time. 
No limitation is provided therefor. However, what can be executed is a final 
G decree, and not a preliminary decree, unless and until final decree is a part 
of the preliminary decree. Without drawing a final decree proceeding, the 
court could not have put the property on auction sale. (747-H; 748-A] 
H 
Rachakonda Venkat Rao and Ors. v. R. Satya Bai (Dead) by LRs. and 
740 
HAS HAM ABBAS SA YY AD v. USMAN ABBAS SA YY AD 
741 
Anr., (200317 SCC 452, relied on. 
A· 
Shankar Ba/want Lokhande (Dead) v. Chandrakant Shankar Lokhande 
and Anr., (1995) 3 SCC 413; WB. Essential Commodities Supply Corpn. v. 
Swadesh Agro Farming & Storage Pvt. Ltd and Anr., (1999) 8 SCC 315; 
Hameed Johram (Dead) and Ors. v. Abdul Salam (Dead) by Lrs. and Ors., 
(2001) 7 SCC 573; Moo/ Chand and Ors. v. Dy. Director, Consolidation and B 
Ors., (19951 5 SCC 631 and Dr. Chiranji Lal (D) by Lrs. v. Hari Das (D) by 
Lrs., (2005) 10 SCC 746, referred to. 
2. It is true that the house property was found to be an impartible one; 
but a preliminary decree having been passed, the valuation thereof and final 
allotment of the property could have been done only in a final decree C 
proceeding. Only when final allotments were made or a determination is made 
that the property should be put on auction sale, a final decree in respect thereof 
should have been passed. (748-B-CI 
3.1. An order passed by a person lacking inherent jurisdiction would D 
be a nullity. The principle of estoppel, waiver and acquiescence or even res 
judicata which are procedural in nature would have no application in a case 
where an order has been passed by the Tribunal/Court which has no authority 
in that behalf. Any on~er passed by a court without jurisdiction would be coram 
nonjudice being a nullity, the same ordinarily would not be given effect to. 
E 
Chief Justice of Andhra Pradesh and Anr. v. I. VA. Dikshitulu and Ors., 
(1979) SC 193; MD. Army Welfare Housing Organization v. Sumangal Service 
(P) Ltd., (2004) 8 SCC 619, Zila Sahakari Kendrya Bank Maryadit v. 
Shahjadi Begum and Ors., (2006) 9 SCALE 675 and Shahbad Co-<?P· Sugar 
Mills Ltd v. Special Secretary to Govt. of Haryana and Ors., (2006) 11 SCALE 
674, relied on. 
F 
Harshad Chiman Lal Modi v. DLF Universal Ltd and Anr., (20051 7 
sec 791, referred to. 
3.2. A distinction must be made between a decree passed by a court which 
has no territorial or pecuniary jurisdiction in the light of Section 21 of the G 
Code of Civil Procedure, and a decree passed by a court having no jurisdiction 
in regard to the subject matter of the suit. Whereas in the former case, the 
appellate court may not interfere with the decree unless prejudice is shown, 
ordinarily the second category of the cases would be interfered with. (749-C( 
H 
742 
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. 
A 
4. In some decisions of this Court where a property that had been put to 
auction and despite
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