Civil PremiumSupreme Court of India

Jennifer Messias v. Leonard G. Lobo

(2026) INSC 502

Decided: 18 May 2026

Justice K.V. Viswanathan, Justice S.V.N. Bhatti

Execution of decreePreliminary decreeFinal decreePartition suitOrder XX Rule 18 CPCSection 2(2) CPCMesne profitsSale of propertyComedy of errors

Key Issue / Question of Law

Whether a Preliminary Decree in a partition suit can be executed directly when the Advocate Commissioner reports that partition by metes and bounds is not possible, and the Preliminary Decree itself contains provisions for sale of the property and apportionment of proceeds, or whether a separate Final Decree is required before execution.

Ratio Decidendi

A decree may be partly preliminary and partly final under Section 2(2) of the Code of Civil Procedure, 1908. The nomenclature of the decree as 'preliminary' is not determinative; the court must examine the contents of the decree to ascertain whether it conclusively determines any rights of the parties. Where a partition decree declares the parties' shares, directs payment of mesne profits, appoints a Commissioner to divide the property by metes and bounds, and further provides that if such division is not possible, the property shall be sold and the proceeds apportioned — such a decree is partly final to the extent it determines the right to possession and mesne profits, and the direction for sale and apportionment becomes executable without a separate Final Decree. Once the Commissioner reports that division by metes and bounds is not possible, the Executing Court is within its jurisdiction to proceed with the sale of the property and apportionment of the sale consideration.

Holding / Decision

The Supreme Court allowed the Civil Appeals, set aside the impugned orders of the High Court dated 27.07.2023 and 20.03.2025, and restored Execution Case No. EX-A-1600007/14. The Court held that the Preliminary Decree dated 13.04.2012 was partly final and executable. The Executing Court was directed to entrust the warrant to the same Advocate Commissioner (or appoint a new one) to conduct the auction of the subject property and apportion the sale consideration between the parties, taking into account the mesne profits. The Trial Court was directed to complete the proceedings within two months.

Background & Facts

Jennifer Messias (Appellant) and Peter Messias were married in 1980 and purchased Flat No. 101, Amba Apartment, Civil Line, Jabalpur from their combined income. The couple was judicially separated in 2003, confirmed by the Supreme Court in 2004. Peter Messias remained in possession of the flat. He died on 26.03.2014. Leonard G. Lobo (Respondent) claims to represent Peter Messias's interests under a registered Will dated 22.03.2014. The Appellant filed Civil Suit No. 7A/2011 for partition and separate possession. On 13.04.2012, the Trial Court passed a Preliminary Decree declaring the Appellant entitled to a one-half share, mesne profits of Rs. 1,500 per month from the date of filing the suit until possession, and appointed a Commissioner to make partition. The Commissioner later reported that the flat could not be partitioned by metes and bounds. The Executing Court ordered public auction. The Respondent filed multiple petitions before the High Court, which eventually set aside the execution proceedings on 27.07.2023, holding that a Preliminary Decree cannot be executed and that a Final Decree was required. The Review Petition was dismissed on 20.03.2025. The Appellant approached the Supreme Court.

Statutes Involved

Section 2(2), Code of Civil Procedure, 1908 — Defines 'decree' and provides that a decree may be preliminary, final, or partly preliminary and partly final
Order XX Rule 12, Code of Civil Procedure, 1908 — Provides for decree for possession and mesne profits, including direction for inquiry and final decree in respect of mesne profits
Order XX Rule 18, Code of Civil Procedure, 1908 — Provides for decree in suit for partition, empowering the court to pass a preliminary decree declaring rights and giving further directions, and to pass a final decree after further inquiry
Order XXVI Rule 14, Code of Civil Procedure, 1908 — Provides for the report of the Commissioner in partition suits
Sections 2 to 4, Partition Act, 1893 — Provides for sale of property in partition suits where division by metes and bounds is not possible, and the deemed decree status of such orders

Full Analysis

This comprehensive analysis covers the full ratio of the bench, the reasoning applied by the court, key precedents distinguished or relied upon, and practical implications for practitioners appearing before constitutional courts. The analysis also covers procedural aspects and the implications for pending matters in lower courts...

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Advocate's Note — Agarawal Associates

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Key Conditional Rule / Important Caveat

This judgment applies ONLY where (a) the partition decree expressly provides for sale of the property and apportionment of proceeds if division by metes and bounds is not possible, (b) the Advocate Commissioner has reported that physical division is not feasible, and (c) the decree has already determined rights to possession and mesne profits. If the decree is a simple preliminary decree without any provision for sale or determination of rights beyond shares, a separate final decree proceeding is required before execution. The judgment does NOT apply where the Commissioner has not yet reported, or where the decree does not contain a fallback sale provision.

Cases Distinguished

Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan (2022) 16 SCC 71 — Distinguished because the High Court relied on it to hold that a final decree was required, but the judgment itself states that there is no need to file a separate application for final decree and the trial court should proceed suo motu.

Cases Cited

Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande (1995) 3 SCC 413 — Relied upon for the distinction between preliminary and final decree, and the proposition that a preliminary decree declares rights and liabilities while a final decree carries them into fulfilment.
Bimal Kumar v. Shakuntala Debi (2012) 3 SCC 548 — Relied upon for the proposition that a decree may be both preliminary and final, and that a decree may be partly preliminary and partly final under Section 2(2) of the CPC.
Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan (2022) 16 SCC 71 — Referred to for the proposition that there is no need to file a separate final decree proceeding and the trial court should proceed suo motu.

Read Full Judgment

Courtroom Arguments

For Petitioner

Preliminary Decree Partly Final, Execution Maintainable — (2026) INSC 502

The Decree dated 13.04.2012 is not merely a preliminary decree; it is partly final as it conclusively determines the Appellant's right to possession and mesne profits.

For Respondent

Preliminary Decree Not Executable, Final Decree Required — (2026) INSC 502

Under settled law, a preliminary decree merely declares rights; it does not create an executable right. A final decree is the sine qua non for execution.

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Disclaimer: This summary is prepared by Agarawal Associates for informational purposes only. It does not constitute legal advice. For legal matters, consult a qualified advocate. © 2026 Agarawal Associates — apexdigest.in