# Uopaliikrishruin, for the v. S. Prasltar, A. S. C!tatMrvedi and [(, It

- **Citation:** [1963] Supp. 2 S.C.R. 616
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Civil Appeal No. 199 of 1960
- **Bench:** S.J. Imam, K. SuBBA RA.o, N. RA.JA.GOPALA AYYANGAR andJ. R. MUDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/uopaliikrishruin-for-the-v-s-prasltar-a-s-c-tatmrvedi-and-it-2793
- **Pages:** 11

## Headnote

P1·eliminary Decree-Partition suit-Father'• iflBolvencySuit chalknging Official Receivtr's sak of sons' share-New law
declaring such right but made subject to previous final decision
of co11rt-l'reliminary decree, if a "final ilfcision"-Pmvincial
In.solvency (Amendment) Act, 1948 (2/i of 19·18), B.2-Pr011incial lnsofrency Act, 1920 (5 of 1920), •. 2SA.
The appellants' father was adjudicated an insolvent and
the Official Receiver put up for sale the property belonging to
the undivided family including the two-thirds share of the
appellants. On February I, 1943, the appellants instituted a
suit for the partition c.f the joint family property impleading
therein the respondent, the purchaser of the property, and
claimed that on their father's adjudication only his share vested
in the Ofltcial Receiver and that the laifoY.had no right to sell
their two-thirds share. The trial court accepted this contention
and passed a preliminary decree for partition in favour of the
appellants. The decree was confirmed by the High Court of
Madras on November 18, 1946. On an application made by
the appellants, a final decree was passed ex-parle on August 17,
1946, but it was set aside at the instance of the respomlent. In
the meantime s. 23A of the Provincial Insolvency Act, 1920,
came into force in 1948, under which the disposing power of
the father o,·er the interest of his undivided sons also vested in
the Official Receiver. By the first· proviso to the section it was
provided "that nothing in this section shall affect any .. transfer
of the prop<rty of the insolvent by ...... a Receiver .... made
before
the commencement
of the
Provincial Insolvency
(Amendment) Act, 1948, which hat been the subject of a final
decision by a competent court". The District Munsif held that the
Amcndin~ Act did not affect the preliminary decree and restored
the ex-parte final decree. The question was whether the
preliminary decree for partition which wa\ affirmed finally in
second appeal by the High Court was a final decision within
s. 28A of the Act.
Held, that a preliminary decree passed, whether it is in a
mortgage suit or a partition suit, is not ~ tent<1.tive d~crer.: but
.(
2 S.C.R.
SUPREME COURT REPORTS
617
must 1 in so far as the matters dealt with by it are concernccl,
he regarded ag e1nhoc:lylng the final
clecL~ion of the Court
pao;;si11g that decree within the n1eaning of the fir~t ptoviso lo
s. 28A of the Provincial Insolvency Act, 1920.
A final decision meam a decision which would operate as
re• jurl;cala between the parties if it is not sought to be modified
or reversed by preferring an appeal or a 'revision or a review
application as is permitted by the Code of Civil Procedure,1903.
In re A D1·btor, [19291 2 Ch.146, considered.
C1v1L APPET.LATE JuRJSDICTION : Civil Appeal
No. 199 of 1960.
Appeal by special leave from the judgment
and decree dated December I, 1955, of the Madras
High Court in second Appeal No. 73fi of Hlii:l.
R. Gan<1p11thy Iyer, R. 'l'kiagamjrm and G.
Uopaliikrishruin, for the appellants.
V. S. Prasltar, A. S. C!tatMrvedi and [(, It.
Gl;au.dhari, for the respondent.
1962. November 30.
The Judgment of the
Court was delivered by
MuDHOLKAR, J. - Only one question arises for
consideration in this appeal by special leave and that
is the meaning to be given to the expression 'final
decision' occurring in the first proviso to s. 28 A of
the Provincial Insolvency Act, l!l20 (Act No. 5 or
1920), introduced by Act No. 25 of 1948.
For appreciating the argument advanced before
us a few facts have to be stated. Venkata Rl'<ldy,
the father of the appellants, was adjudicated an
insolvent by the Sub-Court, Salem in I. P. No. 73 of
1935.
At that time only the appellants l and 2 were
born while the third appellant was born later. The
fathl!r's one·third share was put up for auction by the
Official
Receiver
ancl
was
purchased by one
1961
V1nkat4 Reddi
. y,
Pot/Ji Rttldi
Mudho//rtJr, J.
1962
i"nikata Rfddi
v.
Pot/ii Rtrldi
Afrtdhn!kar, J,
618 SUPREME C

## Text

1962
}.,'opnnhtr 30,
616 SUPREME COURT REPORTS [1963] SUPP.
VENKATA REDDI AND OTHERS
'/},
POTH! REDD!
(S.J. IMAM, K. SuBBA RA.o, N. RA.JA.GOPALA
AYYANGAR andJ. R. MUDHOLKAR, JJ.)
P1·eliminary Decree-Partition suit-Father'• iflBolvencySuit chalknging Official Receivtr's sak of sons' share-New law
declaring such right but made subject to previous final decision
of co11rt-l'reliminary decree, if a "final ilfcision"-Pmvincial
In.solvency (Amendment) Act, 1948 (2/i of 19·18), B.2-Pr011incial lnsofrency Act, 1920 (5 of 1920), •. 2SA.
The appellants' father was adjudicated an insolvent and
the Official Receiver put up for sale the property belonging to
the undivided family including the two-thirds share of the
appellants. On February I, 1943, the appellants instituted a
suit for the partition c.f the joint family property impleading
therein the respondent, the purchaser of the property, and
claimed that on their father's adjudication only his share vested
in the Ofltcial Receiver and that the laifoY.had no right to sell
their two-thirds share. The trial court accepted this contention
and passed a preliminary decree for partition in favour of the
appellants. The decree was confirmed by the High Court of
Madras on November 18, 1946. On an application made by
the appellants, a final decree was passed ex-parle on August 17,
1946, but it was set aside at the instance of the respomlent. In
the meantime s. 23A of the Provincial Insolvency Act, 1920,
came into force in 1948, under which the disposing power of
the father o,·er the interest of his undivided sons also vested in
the Official Receiver. By the first· proviso to the section it was
provided "that nothing in this section shall affect any .. transfer
of the prop<rty of the insolvent by ...... a Receiver .... made
before
the commencement
of the
Provincial Insolvency
(Amendment) Act, 1948, which hat been the subject of a final
decision by a competent court". The District Munsif held that the
Amcndin~ Act did not affect the preliminary decree and restored
the ex-parte final decree. The question was whether the
preliminary decree for partition which wa\ affirmed finally in
second appeal by the High Court was a final decision within
s. 28A of the Act.
Held, that a preliminary decree passed, whether it is in a
mortgage suit or a partition suit, is not ~ tent<1.tive d~crer.: but
.(
2 S.C.R.
SUPREME COURT REPORTS
617
must 1 in so far as the matters dealt with by it are concernccl,
he regarded ag e1nhoc:lylng the final
clecL~ion of the Court
pao;;si11g that decree within the n1eaning of the fir~t ptoviso lo
s. 28A of the Provincial Insolvency Act, 1920.
A final decision meam a decision which would operate as
re• jurl;cala between the parties if it is not sought to be modified
or reversed by preferring an appeal or a 'revision or a review
application as is permitted by the Code of Civil Procedure,1903.
In re A D1·btor, [19291 2 Ch.146, considered.
C1v1L APPET.LATE JuRJSDICTION : Civil Appeal
No. 199 of 1960.
Appeal by special leave from the judgment
and decree dated December I, 1955, of the Madras
High Court in second Appeal No. 73fi of Hlii:l.
R. Gan<1p11thy Iyer, R. 'l'kiagamjrm and G.
Uopaliikrishruin, for the appellants.
V. S. Prasltar, A. S. C!tatMrvedi and [(, It.
Gl;au.dhari, for the respondent.
1962. November 30.
The Judgment of the
Court was delivered by
MuDHOLKAR, J. - Only one question arises for
consideration in this appeal by special leave and that
is the meaning to be given to the expression 'final
decision' occurring in the first proviso to s. 28 A of
the Provincial Insolvency Act, l!l20 (Act No. 5 or
1920), introduced by Act No. 25 of 1948.
For appreciating the argument advanced before
us a few facts have to be stated. Venkata Rl'<ldy,
the father of the appellants, was adjudicated an
insolvent by the Sub-Court, Salem in I. P. No. 73 of
1935.
At that time only the appellants l and 2 were
born while the third appellant was born later. The
fathl!r's one·third share was put up for auction by the
Official
Receiver
ancl
was
purchased by one
1961
V1nkat4 Reddi
. y,
Pot/Ji Rttldi
Mudho//rtJr, J.
1962
i"nikata Rfddi
v.
Pot/ii Rtrldi
Afrtdhn!kar, J,
618 SUPREME COURT REPORTS [1963] SUPP.
Karuppan Pillai for Rs. 80/ ·. The Official Receiver
then put up for auction the two·thirds share belonging
to appellants l and 2 on July ~7, 19::16, which was
purchased by the same person for Rs. 341/-. Ht' sold
the entire property to the respondent Pethi Reddy on
May :!5, I !139, for Rs. 300/·.
The appellants instituted a suit on Fcbruarv l,
l !l l:J, for the partition of the joint family property to
which suit they made Prthi Rrdcly a party ancl
claimed thereunder two-thirds share in the property
puchascd hy him. In that suit it was contended on
behalf of the respondent that on their father's insolvency the share of the appellants in the joint family
property also vested in the Official Receiver and that
he had the power to sell it. The contention was
ncgati \'Cd
by the trial court which passed a
preliminary decree for partition in favour of the
appellants. The decree was affirmed in appeal by
the District .Judge and eventually by the High Court
in second appeal, except with a slight variation
regarding the amount of mcsne profits. The decision
of the High Court is dated November 18, 1946. On
January 18, 1946 the appellants made an application
for a final decree which was granted ex parte on
August 17, 1946. At the instance of the present
respondent this decree was set aside.
By that time
the new provision, that is, s. 28 A of the Provincial
Insolvency Act, had come into force.
On the basis
of this provision it was contended by the respondent
that the appellants were not entitled to the allotment
of their two-thirds share in the property purchased by
him inasmuch as th at share had also vested in the
Official Receiver.
The District Munsif held that
Act 25of1948 which introduced s. 28 A did not
affect the preliminary decree for partition since it
had been passed on August 20, 1943. He, therefore,
restored the ex parte final decree which had been set
aside on December 17, 1950. The apptal preferred
by the respundent against the decision of the Districi
)
2 S.C.R. SUPREME COURT REPORTS
619
Munsif was dismissed by the Principal Subordinate
Judge, Salem, whereupon he preferred a second
appeal before the High Court.
The High Court
allowed the appeal and dismissed the application of
the appellant for passing the final decree.
Section 28A of the Provincial Insolvency Act
runs ;is follows:
"The Qroperty of the insolvent shall comprise
and shall always be deemed to have compriserl
also the capacity to exercise and to take procedings for exercising all such powers in or over or
in respect of property as might have been exer·
cised by the insolvent for his own benefit at the
commencement of his insolvency or before his
discharge :
Provided that nothing in this srction shall
affect any sale, mortgage or other1ransfer of the
property of the insolvent by a Court or Receiver
or the Collector acting under s. 60 made before
the commencement of the Provincial Insolvency
(Amendment) Act, 1948, which has been the
subject of a final decisio.n
by a competent
Court·:
Provided further that the property of the
insolvent shall not be deemed by reason of
anything contained in this section to comprise
his capacity referred to in this section in respect
of any such sale, mortgage or other 'ransfer of
property made in the State of Madras after the
28th day of July, 11142,
and before the
commencement of the Provincial
Insolv~ncy
(Amendment) Act, 1948."
The o~jects and reasons set out in the bill
which sought to introduce this provision were to
bring the provisio11~ of the J>rovincial Jnsolvency Act
1962
Venkata R1idi
••
Pot/ii Reddi
llfodholkor, J.
1962
ftnkata /(nfdi
v.
Pothi Rerldi
?.f11d!in[kar, J.
620 SUPREME COURT REPORTS [1963] SUPP.
in line with thoAe of the Pr"sirkncy Towns Insolvency
Acl in so far as the vesting or 1 he joint family propnty
in the Official Receiver upon the father's insolvency
was concerned. While under the l'residcncv Towns
Insolvency Act, in a case of this kind, the di,posing
power of the father over the interest of his unclivided
sons also vests in the Official Receiver and not merely
the father's own interest in the joint family property,
there was divergence of opinion amongst the High
Courts in India as to whether under the Provincial
Insolvency Act the fathcr"s disposing power over his
undivided sons' interest also vests in the Official
Receiver.
A Full Bench of the Madras High Court
hrld in Rr111111.s11811'11.ln v. l11tlr1hi8k1w Rrio (') that. it
does not. It wa~1 in the
li~ht ol' this decision that in
the appellants snit for partition, a
preliminary
decree was passed with respect to thei_r two-thirds
interest in the Joint family property which had been
sold by the Official Receiver. In the course of the
decision of the Full Bench a suggestion was made
that the legislature should step in and bring the
provisions of the Provincial Insolvency Act in the
relevant respect in line with those of the Presidency
Towns Insolvency Act.
The new provision makes it clear that the law
is and has always been that upon the father"s insolvency his disposing power over the interest of his
undivided sons in the joint family property vests in
the Official Receiver and that
consequently the
latter has a right to sell that interest. The provision is
thus declaratory of the law and was intended to apply
to all cases except those covered by the two provisos.
We are concerned here only with the first proviso.
This proviso excepts from the operation of the Act
a transaction such as a sale by an Official Receiver
which has been the subject of a final decision by a
competent Court.
The short question, therefore. is
whether the preliminary decree for partition passed
in this case which was affirmed finally in second
Cl) J.L.R. [1945) Mad. 83.
2 S.C.R.
SUPREME COURT REPORTS
G21
appeal by the High Court of Madras can be regarded as a final decision.
The competence of the court
is not in question here. What is, however, contended
is that in a partition suit the only decision which can
be said to be a final decision is the final decree
passed in the ca5e and that since final decree proceedings were still going on when the Amending Act
came into force the first proviso was not available to
the appellants. It is contended on behalf of the
appellants that since the rights of the parties are
adjudicated upon by the court before a preliminary
decree is passed that decree must, in so far as rights
adjudicated upon art concerned, be deemed to.be a
final decision. The 'Nord
'decision' even in its
popular sense means a concluded
opinion (see
Stroud's Judicial Dictionary-3rd ed. Vol. I, p. 743).
Where, therefore, the decision is embodied in the
Judgment which is followed by a decree finality must
naturally attach itself to it in the sense that it is no
longer open to question by either party except in an
appeal, review or revision petition a5 provided for by
law. The High Court has, however, observed :
"The mere declaration of the rights of the
plaintiff by the preliminary decree, would, <in
our opinion not amount to a final decision for
it is well knowfl that even if a ·preliminary
decree is passed either in a mortgage suit or in a
partition suit, there are certain contingencies in
which such a preliminary decree can be modified or amended and therefore would not become final."
It is not clear from the judgment what the contingencies referred to by the High Court are in which. a
preliminary decree can be modified or amended
unless what the learned Judges meant was modified
or amended in appeal or in review or in revision or
in exceptional circumstances by resorting to the
powers conferred by ss. 151 and 152 of the Code of
1962
Venksta Reddi
v.
Pothi Reddi
Mudlwlkar, J.
1962
Venkata }{erfdi
•.
I'nl!ti Rftft!i
Jludholkar, J.
622 StJPREMECOUR1REPORTS[HIG3J SUPP.
Civil Procedure. If that is what the High Court
meant then every decree passed by a Court including
decrees passed in cases which do not comtemplate
making of a preliminary decree are liable to be modified and amended. Therefore, if the reason given by
the High Court is accepted it would mean that no
finality attaches to decree at all. That is not the
law.
A decision is said to be final when so far as
the Court rendering it is concerned, it is unalterable
except by resort to such provisions of the Code of
Civil Procedure as permit its reversal, modification
or amendment. Similarly, a final decision would
mean a decision which would operate as res judicate
between the parties if it is not sought to be modilicd
or reversed by preferring an appeal or a revision or a
review application as is permitted by the Code. A
preliminary decree passed, whether it is in a mort·
gage suit or a partition suit, is not a tentative decree
uut must, in so far as the· matters dealt with by it arc
com:erned, be regarded as conclusive. No doubt, in
suits which contemplate the makiug of Lwo dccrecsa preliminary decree and a final decree-the decree
which would he executable would be the final decree.
Unt the finality of a decree or a decision docs not
necessarily depend upon its being executable. The
legislature in its wisdom has thought that suits of
certain types should be decided in stages and though
the suit in such cases can be regarded as fully and
completely decided only after a final decree is made
the decision of the court arrived at the earlier stage
also ha:.; a finality attached to it. It would be relevant to refer to s. 97 of the Code of Civil Procedure
which provides that where a party aggrit~vcd by a
preliminary decree does not appeal from it, he is
precluded from disputing its correctness in any
appeal which may be prefcn·ed from the final decree.
This provision thus clearly indicates that as to the
matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree.
2 S;C.R.
SUPREME COURT REPORTS
G23
The High Court, however, thinks that a decision cannot be regarded as final if further proceedings
are required to be taken for procuring the relief to
which a party is held entitled by that decision.
In
support of its view the High Court has rrfcrred to the
following observations in ·in re A JJ.ibf,JI' (1) :
"It is clear, therefore, that further proceedings
will be necessary to get the money out of court
and I think it is also clear that the order of
October 24, in its own terms, did not finally
determine the right of the petitioner, or any
one else, in respect of the sum to be paid. In
my opinion, therefore, the order is not a 'final
order'. "
In that case the Divorce Court made an order
that "the cu-respondent do within seven <lays from
the service of this order pay into Court the sum of
£(\i · ls. \Id. being the amount of the petitioner's
costs, as taxed and certilicd by uue of the registrars
of this Division." The order was made in that form
because at that ti111c the ultimate fate of the pclitiou
was undecided. No doubt, the decree nisi had been
passed but it had yet tu be made absolute and tl1e
right of the petitioner lo receive the costs might
never have IJecn hrought to fruition.
'.fhc money
had therefore to lie paid into the court.
A little
latter a further order was made by the President
of the Divorce Court in these terms :
"Upon hearing the solicitors for the petitioner
I do order that the order herein elated the l l tlt
day ol' July I!J28 be varied and that (the debtor) tile co-respondent do within seven days
from the service of this order pay to l\fcssrs
H. L. Lumley & Co., of a;, Picadilly \\'. J,
the solicitors of the petitioner, the sum nf :£ Iii
ls. !Jd. being the amount of the petitioner's
taxed costs as taxed and certified by one of the
(I) [1929] 2 Ch. 146.
1962
i-'1•11!.:ata Rcr/J_v
v.
I'ot!ti Reddi
JJudlwlkar, J.
1902
Ftnkata Reddi
v.
Politi Reddi
.lludholkar, J.
1324 SUPREME COURT REPORTS [1963] SUPP.
registrars of this Division, the said solicitors
undertaking to lodge in Court any sums recovered under this order."
Pursuant to this order the solicitors gave an undertaking required by the Court to the registrar on
October 26.
On November 5, the decree nisi was
made absolute. On January 2, 1929, a bankruptcy
notice was issued by the solicitors against the debtor
for payment lo them of the amount of £67 ls. !Jd.
The co-respondent did not comply with the bankruptcy notice and accordingly on January 27, the
solicitors presented a bankruptcy petition against
him.
Over-ruling the objection by the co-respondent, that is, the debtor that the bankruptcy notirc
was bad on, amongst other things, the ground that
the second order made by the President of the
Divorce Division was not a final
order
within
sub-s. 1 (g) of s. 1 of the Bankruptcy Act, 1914, the
registrar made a receiving order. In appeal it was
contended that the receiving order was wrong because
the solicitors were not the creditors of the debtor and
also because the order for payment of the costs to
them was not a final order.
While upholding the
latter contention Lord Hanworth, M. R., said what
has been quoted above and relied upon by the High
Court. Upon the particular facts of the case the
order was clearly not a final order and in making
the observations quoted above the Master of Rolls
did not formulate a test for determining what could
be regarded as a final order in every kind of case.
The observations of the Master of Rolls must be
read in the context of the facts of the case decided
by him. Read that way those observations do not
help the respondents.
Apart from this, lhc short answer tu the reason
given by the High Court is that even a money decree
passed in a suit would cease to be a final decision
because if th(' judgment-debtor against whom the
2 s.c.R. SUPREME COURT REPORTS
625
decree is passed does not pay the amount voluntarily
execution proceedings will have to be taken for recovering the amount from him. It would thus lead
to an absurdity if the test adopted by the High
Court is accepted. In support of the High Court's
view a few decisions were cited at the bar but as
they arc of no assistance we have not thought it fit
to refer to them. We may, however, refer to a decision
of this court upon which reliance was placed by the
respondents. That is the decision in Vakalapudi
Sri Ranga Rao and others v. Mutyala Ammanna (1)
in which it was
held that a particular order
was not a final decision within the meaning of the
first proviso to s. 28-A. There, in a suit for partition
and another suit for possession of the suit property
and arrears of rent, it was contended that upon the
father's insolvency the Official Receiver was incompetent to sell the son's interest in the joint
family property. The contention was
negatived
by the trial court but upheld in appeals by the
Subordinate Judge who remanded the suits to the
trial court with certain directions. Appeals preferred
against his decision were dismissed by the High
Court. Before the decision of the suits after remand, the Amending Act, XXV of 1948 came into
force and it was contended before the trial court
that in view of the new provision the sale by the
Official Receiver. must be held to be good even so
far as the sons' interest was concerned. This contention was negatived by the trial court on the
ground that the decision of the High Court on the
point was a 'final order' within the meaning of the
proviso. The District Judge, before whom appeals
were preferred, however, negatived the contention
and held that there was no final order with regard to
the sale by the Official Receiver. The High Court
reversed the decision of the District Judge but this
Court held that the orders of remand made by the
Subordinate Judge and upheld by the High Court
were interlocutory orders as also were the orders of
(I) O.A. No, 634 of 1957, decided on Marca 211, 1961.
1962
Venkala RedJi
v.
Polhi Reddi
Mudholkar, J.
1962
V1nkata Rufii
••
Pothi Rddi
Mudlwl!rar, J.
626 SUPREME COURT REPORTS [1963] SUPP.
the High Court in the appeals preferred before it
and as such could be challenged in the appeal
preferred before this Court against
the decision
of the High Court in the appeal against the
final decree in the suit. In the case before us the
preliminary decree was never challenged at all by
preferring any appeal and therefore, the matters
concluded by it are not open to challenge in an
appeal against the final decree.
Further, a preliminary decree cannot be equated with an interlocutory order within the meaning of s. 105, Code
of Civil Procedure. It will thus be seen that the
decision relied upon has no application to the facts
of this case.
Our conclusion, therefore, is that in this case
the sale made by the Official Receiver during the
insolvency of the appellants' father was the subject
of a final decision by a competent court inasmuch
as that court decided that the sale was of no avail
to the purchaser at the Official Receiver had no
power to effect that sale.
Nothing more was required to be established by the appellants before being
entitled to the protection of the first proviso to s.28A.
Since they have established what was required to
be established by them, they are entitled to a final
decree and the High Court was .in error in dismissing their application in that behalf. In the result
we allow the appeal, set aside the judgment and
decree of the High Court and restore that of the
trial court as affirmed in appeal by the learned
Subordinate Judge. Costs in this court and in the
High Court will be borne by the present respondent.
The remaining costs will be borne as ordered by
the first appellate court.
Appeal allowed.
1