Trial Court Cannot Exclude Property From Partition In Final Decree Proceedings If Review Order Directs Its Division: Telangana High Court

"In view of the order passed in the review petition in I.A.No.171 of 2008, not only Item Nos.1 and 3, but Item No.4 is also liable for partition. To said extent, there is a lapse in the impugned order passed by trial Court." Telangana High Court, in a significant ruling, held that a trial court cannot exclude specific suit properties from partition during final decree proceedings when a modified decree or a review order has specifically directed their division.

A Single Judge Bench of Justice Renuka Yara observed that the trial court committed a lapse by misinterpreting previous appellate findings and failing to include all eligible properties for division by the Advocate Commissioner.

The court noted that once a review petition clarifies that a particular property is available for partition by metes and bounds, the trial court is duty-bound to implement that finding in the final decree stage. The bench emphasised that erroneous findings in original appellate decrees, once corrected through review, must be the basis for the appointment of an Advocate Commissioner.

The matter arose from a partition suit filed in 1994 involving 'A' and 'B' schedule properties, which was initially decreed in 2005. Following an appeal and a subsequent review petition in A.S. No. 76 of 2005, the first appellate court corrected an earlier error where it had wrongly assumed that 'Item No. 4' of the schedule property had been sold. While the review order directed the partition of Item No. 4, the Trial Court, in its order dated December 19, 2024, only directed the Advocate Commissioner to partition Item Nos. 1 and 3, prompting the present revision.

The primary question before the court was whether the trial court was justified in excluding Item No. 4 from partition despite a specific review order directing its division. The court also examined whether the pendency of a Second Appeal, in the absence of a stay order, could prevent the implementation of the modified preliminary decree.

Trial Court Erred In Ignoring Modified Preliminary Decree

The High Court observed that the trial court had significantly misinterpreted the history of the litigation, particularly the impact of the review petition. The bench noted that while the original appellate judgment suggested Item No. 4 was sold and only its sale proceeds were to be shared, this finding was explicitly set aside in review.

The Court pointed out that the review petition had found an "error apparent on the face of the record" regarding the status of Item No. 4. Consequently, the appellate court had directed that the property be partitioned among the sharers rather than merely distributing sale proceeds.

"Since the petitioners was able to establish that an error is apparent on the face of the judgment passed by this court earlier, I found it is a fit case where the petitions are liable to be allowed."

Absence Of Stay In Higher Forums Necessitates Implementation

The bench highlighted that although a Second Appeal and Civil Miscellaneous Appeals were pending before the High Court, there was no stay order operating against the preliminary decree or the review order. Under the Code of Civil Procedure, the mere filing of an appeal does not operate as a stay on the execution of a decree unless specifically ordered.

The High Court found that the trial court failed to exercise its jurisdiction correctly by limiting the partition to only two items of the property. The bench remarked that the daughters, under the Hindu Succession Act, 1956, were entitled to their respective shares in Item No. 4 as well, and denying this through a restrictive order was legally unsustainable.

"There is a lapse on the part of the trial Court in passing the impugned order dated 19.12.2024 for division of Item Nos.1 and 3 without referring to Item No.4 of suit schedule ‘A’ properties."

Mandatory Inclusion Of All Partitionable Items In Commissioner's Warrant

Justice Renuka Yara held that the trial court's decision to reject the contention regarding Item No. 4, despite recording the existence of the review order, was inexplicable. The Court held that the Advocate Commissioner must be directed to divide Item Nos. 1, 3, and 4 of suit schedule ‘A’ properties to ensure complete justice and adherence to the modified preliminary decree.

The Court clarified that the role of the trial court in final decree proceedings is to give effect to the preliminary decree as it stands at the time of the application. By omitting a property that was explicitly brought back into the partitionable pool by a review court, the trial court had acted with material irregularity.

"The Advocate Commissioner is directed to divide Item Nos.1, 3 and 4 of suit schedule ‘A’ properties in terms of judgment and decree in review application I.A.No.171 of 2008 in A.S.No.76 of 2005, instead of Item Nos.1 and 3 only."

The High Court allowed the Civil Revision Petition and set aside the trial court's order to the extent of its exclusions. It directed the Advocate Commissioner to include Item No. 4 in the partition process alongside Items 1 and 3, in accordance with the 2015 review order. The ruling reinforces the principle that final decree proceedings must strictly conform to the most recent and valid modification of the preliminary decree.

Date of Decision: 01 July 2026