Smt.Eshwari Vs Sarojamma

THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 19/12/2025 PASSED BY THE LEARNED PRL. CIVIL JUDGE AND JMFC, PERIYAPATNA IN FDP NO.04/2015 WHICH IS PRODUCED AS ANNX-F AND ETC.,

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THIS PETITION, COMING ON FOR ORDERS , THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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NC: 2026:KHC:4384 WP No. 2112 of 2026

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HC-KAR

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ORAL ORDER

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This petition by the petitioner in FDP No.4/2015 is directed against the impugned order dated 19.12.2025 whereby the Final Decree Proceedings was dismissed / closed by the Trial Court.

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Heard learned counsel for the petitioner and perused the material on record.

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A perusal of the material on record will indicate that the petitioner instituted the aforesaid Final Decree Proceedings to enforce and implement the judgment and decree dated 08.11.2011 passed in O.S.No.135/2010. On 17.11.2025, the petitioner filed a memo interalia contending that having regard to certain supervening / intervening events that had occurred subsequent to passing of the preliminary decree, the final decree proceedings have to be decided and a final decree deserves to be passed by taking into account the said events that had occurred subsequent to the preliminary decree. The said memo filed on behalf of the petitioner reads as under:

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“The Decree Holder most respectfully submits as follows:

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1. That the present Final Decree Proceedings are maintainable and the executing court has full jurisdiction to pass the Final

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NC: 2026:KHC:4384 WP No. 2112 of 2026

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HC-KAR

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Decree. The Hon'ble Court has already passed the Second Preliminary Decree dated 08.09.2025, modifying the shares of the parties as per para 11 of the judgment in OS No. 135/2010. The FDP proceedings in FDP No. 04/2015 are a continuation of the original suit and remain very much alive, and the court has complete jurisdiction to proceed further and pass the Final Decree. It is a settled legal position that a) Final decree proceedings are not a separate suit b) Passing of a "second preliminary decree" does not abate, nullify, or require termination of existing FDP proceedings c) The court must continue the FDP based on the latest preliminary decree

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2. Second Preliminary Decree does not require filing of a fresh FDP:

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The Judgment Debtors may contend that because a Second Preliminary Decree has been passed, a fresh FDP petition must be filed. This contention has no merit in law. The Hon'ble Supreme Court in Phoolchand v. Gopal Lal, AIR 1967 SC 1470, held that:

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"A Court may pass more than one preliminary decree during the progress of the suit and it is the duty of the Court to consider subsequent events and modify the preliminary decree. The final decree proceedings shall proceed on the basis of the latest preliminary decree."

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Thus, even where a second or modified preliminary decree is passed, the same FDP proceedings shall continue. The court does not lose jurisdiction nor does the decree holder need to file a fresh FDP.

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3. Final Decree Court must work out shares according to latest preliminary decree

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NC: 2026:KHC:4384 WP No. 2112 of 2026

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HC-KAR

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The law mandates that the court must pass a final decree based on the last operative preliminary decree.

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Therefore, the Second Preliminary Decree dated 08.09.2025 automatically becomes the governing decree, and FDP No.04.2015 must be proceeded with accordingly.

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The Hon'ble Supreme Court in Venkata Reddy v. Pethi Reddy (1963) 2 SCR 285 held:

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"A decree becomes final only when the rights of parties are completely adjudicated by passing a final decree. Till then, the court retains jurisdiction to modify or pass additional preliminary decrees."

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Similarly, Shub Karan Bubna v. Sita Saran Bubna (2009) 9 SCC 689 held:

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"Final decree proceedings are a continuation of the suit and the Court is bound to bring them to completion."

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Hence, the existence of the second preliminary decree only strengthens the FDP-it does not require fresh proceedings.

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4. Impleadment of subsequent purchasers does not affect FDP maintainability

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In the present case, subsequent purchasers and other parties were impleaded and the second preliminary decree reflects the correct shares. This does not create any need for a new FDP.

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Under Order 22 Rule 10 CPC, a transferee pendente lite is a representative-in-interest of the original party, and proceedings automatically continue with the transferees being bound by all future decrees.

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NC: 2026:KHC:4384 WP No. 2112 of 2026

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HC-KAR

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The Supreme Court in Amit Kumar Shaw v. Farida Khatoon (2005) 11 SCC 403 held:

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"A transferee pendente lite is bound by the decree and the proceedings do not abate nor require to be re-instituted."

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Thus, the FDP should continue seamlessly.

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5. Court is duty-bound to appoint a Commissioner and complete partition

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In the Second Preliminary Decree, this Hon'ble Court has already declared the shares of the plaintiff and defendants and directed that the properties be partitioned by metes and bounds.

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Thus, allowing IA No.7 under Order XXVI Rule 13 & 14 read with Order XX Rule 18 and appointing Commission / Surveyor is mandatory. The Supreme Court reiterated that in partition cases, the court must ensure completion of the final decree by appointing a commissioner wherever necessary.

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In light of the above, the Decree Holder humbly prays that this Hon'ble Court may be pleased to: Proceed with the Final Decree Proceedings in FDP No. 04/2015 based on the Second Preliminary Decree dated 08.09.2025; and Allow IA No. 7 filed under Order XXVI Rule 13 & 14 CPC for appointment of a Surveyor/Engineer as Court Commissioner to measure and partition the schedule properties by metes and bounds and also Pass the Final Decree in accordance with the Second Preliminary Decree, by putting the decree holder in separate possession of her 1/8^th share; and pass any other appropriate orders in the interest of justice.”

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NC: 2026:KHC:4384 WP No. 2112 of 2026

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HC-KAR

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In pursuance of the aforesaid memo, instead of hearing the parties, the Trial Court proceeded to dismiss the petition itself by passing the impugned order, which is ex-facie illegal and erroneous inasmuch as the same would result in multiplicity of proceedings, which are to be avoided by setting aside the impugned order and by directing the Trial Court to proceed further in the existing FDP No.4/2015 by taking into account the original preliminary decree and subsequent preliminary decrees passed by the Trial Court.

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In the result, I pass the following:

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ORDER

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(i) The petition is hereby allowed.

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(ii) The impugned order dated 19.12.2025 passed in FDP No.4/2015 by the Trial Court is hereby set aside.

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(iii) FDP No.4/2015 is restored to the file of the Final Decree Court and the Final Decree Court is directed to proceed further and dispose of FDP No.4/2015 after hearing all parties on merits and in accordance with law.

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(iv) All parties are directed to appear before the Final Decree Court on 09.02.2026 .

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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SV; List No.: 2 Sl No.: 79

Smt.Eshwari v. Sarojamma

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Smt.Eshwari v. Sarojamma

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