HASHAM ABBAS SAYYAD versus USMAN ABBAS SAYYAD AND ORS.

HASHAM ABBAS SAYYAD versus USMAN ABBAS SAYYAD AND ORS.

Property cannot be auctioned or executed on preliminary decree; a final decree must be drawn and is only executable. Jurisdictional defect renders orders a nullity. Directions using Article 142 of the Constitution are permissible to effectuate complete justice.

Parties
Appellant: Hasham Abbas Sayyad; Respondent No.1: Usman Abbas Sayyad; Respondent No.2: Respondent No.2; Respondent No.3: Respondent No.3
Jurisdiction
India
Judgment Date
12 December 2006
Procedural Posture
Civil Appeal / Appeal From Dismissal of Writ Petition by High Court
Outcome
Appeal allowed
Legal Topics
Partition, Decrees (preliminary and Final), Execution of Decree, Auction Sale, Jurisdiction
Civil Procedure Property Law Partition Decrees (preliminary and Final) Execution of Decree Auction Sale Jurisdiction

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Parties

Hasham Abbas Sayyad

Appellant

Usman Abbas Sayyad

Respondent No.1

Respondent No.2

Respondent No.2

Respondent No.3

Respondent No.3

Procedural Posture

Civil Appeal / Appeal From Dismissal of Writ Petition by High Court

Legal Issues

  1. 1 Whether suit property could be put to auction sale without initiating final decree proceedings
  2. 2 Whether the preliminary decree can be executed without a final decree
  3. 3 Effect of jurisdictional defect in court orders

Ratio Decidendi

Property cannot be auctioned or executed on preliminary decree; a final decree must be drawn and is only executable. Jurisdictional defect renders orders a nullity. Directions using Article 142 of the Constitution are permissible to effectuate complete justice.

Court Disposition

Appeal allowed

Orders

  • Appellant must deposit sum of Rs.18 lakhs before Trial Judge; Respondent Nos.1 and 2 permitted to withdraw Rs.9 lakhs each.
  • Appellant to pay interest by way of compensation at 9% per annum from date of deposit until payment to auction purchaser.