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Issues: (i) Whether a property in a partition suit could be put to auction sale without initiating final decree proceedings; (ii) Whether relief could be moulded under Article 142 of the Constitution of India to protect the parties and the auction purchaser.
Issue (i): Whether a property in a partition suit could be put to auction sale without initiating final decree proceedings.
Analysis: A preliminary decree in a partition suit only declares the rights of the parties. Under the Code of Civil Procedure, execution lies only upon a final decree, and where partition of immovable property remains to be worked out, the court must proceed through final decree proceedings, including appropriate inquiry and, where necessary, action under the provisions governing partition commissions. A property cannot be sold in execution of a preliminary decree. If the property is to be allotted by sale because partition by metes and bounds is not feasible, that determination must form part of the final decree.
Conclusion: The auction sale ordered without a final decree proceeding was impermissible and the appellant succeeded on the jurisdictional issue.
Issue (ii): Whether relief could be moulded under Article 142 of the Constitution of India to protect the parties and the auction purchaser.
Analysis: Although the sale was held to be without jurisdiction, the Court noted that possession had not been delivered to the auction purchaser and that complete justice could be done by directing monetary deposit in lieu of upsetting the entire arrangement. The Court exercised its constitutional power to balance the equities, secure the shares of the co-sharers, and compensate the auction purchaser by interest on the deposited amount.
Conclusion: Relief was moulded in favour of the appellant subject to deposit of amounts directed by the Court.
Final Conclusion: The impugned auction was set aside, the decree for partition was treated as satisfied on compliance with the deposit directions, and the appeal was allowed subject to the Court's equitable terms.
Ratio Decidendi: In a partition suit, a preliminary decree is not executable as such; any sale of the suit property must be preceded by a final decree, though the Court may, in appropriate cases, invoke Article 142 to mould equitable relief and avoid injustice.
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