S. SATNAM SINGH & ORS. versus SURENDER KAUR & ANR.

Citation: [2008] 16 S.C.R. 904 · Decided: 02-12-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
[2008] 16 S.C.R. 904 
S. SATNAM SINGH & ORS. 
II. 
SURENDER KAUR & ANR. 
(Civil Appeal No. 7008 of 2008) 
·DECEMBER 02, 2008 
[S.B. SINHA AND CYRIAC JOSEPH, JJ.] 
.Code of Ciltil Procedure, 1908 - ss. 2(2) and 97 -
Partition suit =.. ·Inclusion of property in, after passing of 
C preliminary decree - Permissibility - Held: Ordinarily a suit 
. for partial partition may not be entertained - But to do 
complete justice, subsequent events after passing of 
preliminary decree can be taken into account - On facts, 
since the addition of property was sought prior to passing of 
D the decree in Written Statement, failure to pass decree in 
respect of that property was a mistake of the court .... s. 97 is 
not a bar to amend a decree to rectify the mistake of the court. 
Words and Phrases - Decree - Meaning of. 
E 
Predecessor of respondent filed a suit for _partition, 
claiming % share in the propertx. Appellants-defendants 
in their Written Statement contended that the plaintiff had 
only 1/3rd share in the suit property. They also mentioned, 
about. partition .of cycle business. In an application 
F seeking amendment of Written Statement .also they 
mentioned about the partition of business of cycle. 
However, issues were not framed on this point. Trial Court 
passed a decree d·eclaring 1/3td share in favour 9f 
plaintiff. Appellants thereafter filed application under 
G Order 20 Rule 18 rlw s.152 CPC with regard to share of· 
the parties in the business of cycle. Application was 
allowed. High Cou-rt set aside the order holding that in 
terms of s.97 · CPC.1 after the. preliminary ·decree attained 
finality, additional properties cannot be added for partition 
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904 
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S. SATNAM SINGH & ORS. v. SURENDER KAUR & 
905 
ANR. 
in the preliminary decree. 
A 
Allowing .. the. appeal, the Court 
HELD: 1.1. A 'decree' as defined in Section 2(2) CPC 
means the formal expression of an adjudication which, 
so far as regards, the Court expressing it, conclusively B 
determines the rights of the parties with regard to all or. 
any of the matters in controversy in the suit. It may either 
be preliminary or final. It may partly be preliminary and 
partly be final. The court with a view to determine whether' 
an order passed by it is a decree or not must take into , C 
consideration the pleadings of the parties and the 
proceedings leading upto the passing of an order. The . 
·circumstances under which an order had been made 
would also be relevant. [Para 14] [912-G-H; 913-A] 
1.2. For determining the question as to whether an ·D 
order passed by a court is a decree or not, it must satisfy 
the tests viz.(i) ·there must be an adjudication; (ii) such 
adjudication must have been given in a suit; (iii) it must 
have determined the rights of the parties with regard to E 
all or any ·of the matters in controversy in the suit; (iv) 
such determination must be of a conclusive nature; and 
(v) there must be a formal expression of such 
adjudi~atic:>n. [Para 15] (913-8-0] 
1.3: Ordinarily, a suit for partial partition may not be 
F 
entertained. When the parties have brought on records 
by way of pleadings and/or other material that apart from 
the property mentioned by the plaintiff in his plaint, there 
are other properties which could be a subject matter of 
a partition, the court would be entitled to pass a decree G 
even in relation thereto. In certain situations, for the 
purpose of complete adjudication of the disputes 
between the parties, an appellate Court may also take into 
consideration subsequent events after passing of the 
. preliminary decree. [Paras 16 and 17] [913-E-H] 
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906 
SUPREME COURT REPORTS 
[2008] 16 S.C.R. 
A 
1.4. Section 97 CPC provides for an appeal against 
preliminary decree but the said provision, would not .be 
'j... 
a bar to file an application for amendment of a decree. 
[Para 20] (916-D] 
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1.5. The court may ·not have a suo motu power to 
amend a decree but the ·same would not mean that the 
court cannot rectify a mistake. If a property was subject 
matter of p
0
leadings and the court did not frame an issue 
which it ought to have done, it can, at a later stage, when 
pointed out, amend the decree. The power of 
C amendment, in a case of this nature, would not only be 
dependent upon the power of the court but also the 
principle that a_ court shall always be ready and willing 
to rectify .the mistake it has committed. [Paras 21 and 22] 
D 
[916-H; 917-A-B] 
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1.6. In the instant case, the

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