SHERIN vs SHERVIN ANTONY

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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
RD
FRIDAY, THE 23 DAY OF OCTOBER 2026/1ST KARTHIKA, 1948
OP(C) NO.1186 OF 2021
ARISING OUT OF THE ORDER DATED 09.04.2021
E.P.NO.213/2018 IN O.S.NO.593/2015 OF PRINCIPAL MUNSIFF'S
COURT, ALAPPUZHA
PETITIONER/2ND JUDGMENT DEBTOR:
SHERIN
AGED 39 YEARS
D/O.LATE P.C.ANTONY,
KANICHERY HOUSE, KALATHU WARD,
AVALOOKKUNNU P.O., ALAPPUZHA PIN 688006
BY ADVS.
SMT.C.G.BINDU
SMT.AJITHA C.G.
KUM.K.J.SARANYA RAJ
RESPONDENTS/DECREE HOLDER & 1ST JUDGMENT DEBTOR :
1 SHERVIN ANTONY
AGED 38 YEARS
S/O.LATE P.C.ANTONY,
PALLATHU HOUSE (THADICKAL),
KALATHU WARD, AVALOOKUNNU P O
ARYAD SOUTH VILLAGE, ALAPPUZHA, PIN 688006
2 MARY SHYNI
AGED 58 YEARS
W/O.ANTONY P.C.,
PALLATHU HOUSE (THADICKAL) ,
KALATHU WARD, AVALOOKUNNU P O
ARYAD SOUTH VILLAGE, ALAPPUZHA, PIN 688006

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BY ADVS.
SRI.K.S.HARIHARAPUTHRAN, R1
SMT.BHANU THILAK
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
09.10.2026, THE COURT ON 23.10.2026 DELIVERED THE
FOLLOWING:

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JUDGMENT
rd
Dated this the 23 day of October, 2026
This O.P.(C) is filed seeking to set aside Exhibit P6
order dated 09.04.2021 in E.P.No.213 of 2018 in O.S.No.593
of 2015 on the files of the Principal Munsiff's Court,
Alappuzha. By the said order, the learned Munsiff had
turned down the contention of the petitioner who was the
second judgment debtor in the E.P. that the E.P. was
premature since no final decree had been rendered so as to
enable an execution. Against the said order of the learned
Munsiff holding that the E.P. is maintainable, this O.P.(C) has
been filed by the petitioner/second judgment debtor.
2. Facts in brief relevant for the disposal of this O.P.
(C) are as follows :
Petitioner along with her mother, the second
respondent herein, had filed the suit for partition as
O.S.No.593 of 2015 before the Principal Munsiff Court,
Alappuzha. Her brother (first respondent herein) was arrayed
as the defendant in the said suit. The plaint schedule

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property sought to be partitioned was owned by the father of
the petitioner and the second respondent who had died
intestate. The suit was compromised and Exhibit P2
preliminary decree was passed based on a compromise
petition. As per the said compromise, the first respondent
rd
agreed to a decree in favour of the petitioner for his 1/3
right and for equalisation of rights an amount of
₹ 10,75,000/- was to be paid to him by the petitioner within
the specified time limit. Thereafter, the first respondent (son)
filed an execution petition numbered as E.P.No.213 of 2018
for executing the decree. It was contended in the E.P. that
st
though the 1 respondent was ready and willing to get the
sale deed executed, the petitioner, contrary to the terms of
the compromise, was not amenable. Hence according to the
son/first respondent herein, upon receipt of 10,75,000/-
₹
rd
he was entitled to execute a deed transferring his 1/3 right
over the decree schedule property in favour of the petitioner,
in terms of the compromise decree. The petitioner resisted
the E.P. contending that since a final decree in terms of

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the compromise decree had not been rendered so far, the
E.P. itself was premature and fit to be dismissed. The
learned Munsiff, however, turned down the contention inter
alia holding that a compromise decree is as good as a
decree in a contested suit and the same was enforceable.
The contention of the petitioner that the settlement
agreement would only reveal a preliminary decree and that
in so far as a final decree was yet to be drawn up no
execution petition as filed by the first respondent could have
been entertained, did not find favour with the Munsiff. Hence
this O.P.(C) is filed by the petitioner challenging Exhibit P6
order.
3. Heard Sri.C.G.Bindu, Advocate for the petitioner,
st
and Sri.K.S.Hariharaputhran, Advocate for the 1
respondent.
4. The learned counsel for the petitioner submitted
that Exhibit P6 order which found the decree executable is
erroneous and unsustainable. It is submitted that a
preliminary decree cannot be executed without a final decree.

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Preliminary decree, it is submitted, does not dispose of the
suit completely and it is only to be considered as the prior
stage of the suit. Thus according to the learned counsel, the
learned Munsiff erred in concluding that the compromise
decree between the parties was executable and consequently
in rejecting the contention of the petitioner that the execution
petition was premature.
5. The learned counsel for the petitioner, to buttress
her above contention, placed reliance on the wordings of the
decree produced as Exhibit P2. It had been stated in the
decree that since there is a clause in the compromise
rd
regarding assignment of 1/3 share of the first defendant son
(first respondent herein) in the scheduled property, to the
second plaintiff daughter (petitioner herein), the decree shall
be registered. The said requirement for registering mentioned
in the decree, it is submitted by the learned counsel for the
petitioner, is a pointer to the fact that the same is only a
preliminary decree and a final decree is yet to follow. It is also
submitted that Clause 4 of the terms of settlement specifically

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mentions a final decree wherein the parties agree that the
rd
first plaintiff (mother) would have 1/3 right and the
rd
petitioner (daughter) would have 2/3 rights. On the said
premise, the learned counsel submits that the finding of the
learned Munsiff in the impugned order that there is nothing
in the decree to denote that the same was only a preliminary
decree or that the parties envisaged a final decree to follow, is
erroneous.
6. The learned counsel for the petitioner further
rd
submits that the 1/3 share to be transferred as per the
compromise had not been identified and unless the same was
identified and set apart, the question of the petitioner paying
any amount as agreed to in the compromise as consideration
rd
for the transfer of the said 1/3 share does not arise. The
same is also termed by the learned counsel for the petitioner
as yet another factor that points to the need of a final decree
before proceeding to execute the decree based on the
compromise. According to the learned counsel for the
petitioner, if without such prior identification of the share,

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had the petitioner proceeded to effect payment to the first
respondent, then there would arise the need to initiate yet
another litigation for partition of the property. The failure of
the first respondent to perform his part of the bargain and
the consequent change of circumstances is also pointed out
by the learned counsel for the petitioner as a reason for the
petitioner not abiding by the payment requirement under
clause 5 of the terms of compromise which is part of the
decree. Reliance is also placed on the judgment of this Court
in Mariamma Prince and others v. Mathew K.George [2021
(1) KHC 652 (DB)], to contend that a preliminary decree
cannot be executed without a final decree. Relying on the said
judgment, it further contended that a preliminary decree
cannot completely dispose of a partition suit and that a suit
has to be considered as pending until division takes place by
passing of a final decree.
7. Per contra , learned counsel appearing for the first
respondent submitted that a joint compromise petition filed
by all parties giving details of shares to be allotted is

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executable and that it is not always necessary to pass a final
decree thereupon. It is contended that when parties to a suit
file a compromise petition, unless it is found to be not
genuine, no further enquiry is needed in passing a decree. A
compromise petition which has been filed praying to pass a
decree in terms of such petition, finally decides the rights of
the parties to the suit, submits the learned counsel.
8. It is further submitted by the learned counsel for

the first respondent that it is not in dispute that as per the
terms of the decree, the first respondent was entitled to
realize an amount of 10,75,000/- from the petitioner within ₹
7 months from the date of the decree and upon default he is
entitled to realize the same with 6% interest by having a
rd
charge over 2/3 share of the judgment debtor over the
decree schedule property. The said decree had not been
challenged, stayed or varied. The same has thus become
final. It is submitted by the learned counsel that the learned
Munsiff had correctly concluded in the impugned order that
the said decree was in fact a formal expression of the

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compromise between the parties and the said compromise
had been accepted by the court, leading to the issuance of a
decree in terms of the same. Hence the parties are, according
to the learned counsel, bound by the said decree. After
violation of the terms of compromise by the petitioner, she
cannot now be heard to contend that a final decree has to
follow. Reliance is placed on the judgments of this Court in
Swaminathan v. Anantharama Subramanian [2002 (3) KLT
707] to buttress this contention. Reliance is also placed on
the judgment of the Hon'ble Supreme Court in Mukesh v.
State of Madhya Pradesh and another (AIR 2025 SC 425) to
contend that a consent decree was not registrable and that
the same could have been acted upon without waiting for the
issuance of a final decree. The dictum laid down by the
Hon'ble Supreme Court in Deepa Bhargava and another v.
Mahesh Bhargava and others [2009 (1) KLT Suppl. 1037
SC] : [2009 (2) SCC 294] is also pressed into service by the
st
learned counsel for the 1 respondent.
9. I have heard both sides in detail and have

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considered the contentions put forth. The precedents relied
on by both sides have been studied. It is noted that Exhibit
P2 decree had been drawn up based on the compromise
petition filed by the parties and it enumerates the terms of
compromise. It had been agreed therein that the petitioner
st
would within a period of 7 months pay to the 1 respondent
an amount of 10,75,000/-. Based on the same, the ₹
agreement of the parties to arrive at a final resolution of their
rd rd
dispute by setting apart 1/3 share to the mother and 2/3
to the petitioner had also been recorded. Clause No.5 of the
said terms of compromise further stipulated that in terms of
the above, if within the said period of 7 months the petitioner
fails to pay the amount of 10,75,000/- to the first ₹
respondent, interest @ of 6% would be attracted, which could
st
be realized by the 1 respondent from the petitioner and her
rd
2/3 interest in the partitioned property. Whether the decree
drawn in the above terms is executable or whether a final
decree must be drawn up for the said purpose is the question
that comes up for my consideration.

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10. It is trite that executability depends on what the
parties intended in the compromise application. If the
compromise states that specific shares are allotted and the
terms of such compromise including the amounts to be paid
and the period within which it is to be paid are specified,
there is nothing further to be done therein than to comply
with the terms. Upon failure of the parties to abide by the
same, the remedy has to be by way of execution.
11. As regards the contention put forth by the
petitioner that since the requirement of registration was
mentioned in the decree itself, the drawing up of a final
decree was mandated, the same cannot be sustained in view
of the settled position of law that a compromise decree is not
compulsorily registrable [See Khushi Ram v. Nawal Singh
(2021) 16 SCC 279); Ripudaman Singh v. Tikka Maheshwar
Chand (2021) 7 SCC 446)].
12. As regards the nature of a decree from the point
of view of its executability, it would be apposite to refer in this
context, to the recent judgment rendered by the Hon’ble

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Supreme Court in Jennifer Messias v. Leonard G Lobo
[2026 SCC OnLine SC 882], wherein it was held as follows:
“13. The Object, purpose and scope of the
Preliminary Decree and a Final Decree have been
explained in a catena of decisions, and we are not
proposing to burden the Judgment with precedents
when the position of the law is well established,
but we refer to Shankar Balwant Lokhande v.
Chandrakant Shankar Lokhande and Bimal
Kumar v. Shakuntala Debi , stating the
following:
Shankar Balwant Lokhande v. Chandrakant
Shankar Lokhande (supra)
“3. xxx Section 2(2) of CPC defines ‘decree’ to mean
“the formal expression of an adjudication which, so
far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all
or any of the matters in controversy in the suit and
may be either preliminary or final”. A preliminary
decree is one which declares the rights and liabilities
of the parties leaving the actual result to be worked
out in further proceedings. Then, as a result of the
further inquiries conducted pursuant to the
preliminary decree, the rights of the parties are fully
determined and a decree is passed in accordance
with such determination which is final. Both the
decrees are in the same suit. Final decree may be
said to become final in two ways: (i) when the time
for appeal has expired without any appeal being filed
against the preliminary decree or the matter has been
decided by the highest Court; (ii) when, as regards
the court passing the decree, the same stands
completely disposed of. It is in the latter sense the
word ‘decree’ is used in Section 2(2) of CPC. The
appealability of the decree will, therefore, not affect
its character as a final decree. The final decree
merely carries into fulfillment the preliminary decree
4. Order 20, Rule 18 envisages passing of a decree
for partition of property or for separate possession of
a share therein. Sub-rule (2) is material which
provides that “if and insofar as such decree relates to
any other immovable property or to moveable
property, the Court may, if the partition or separation
cannot be conveniently made without further inquiry,
pass a preliminary decree declaring the rights of the

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several parties interested in the property and giving
such further directions as may be required”.
(emphasis ours) Thus, it could be seen that where the
decree relates to any immovable property and the
partition or separation cannot be conveniently made
without further inquiry, then the court is required to
pass a preliminary decree declaring the rights of
several parties interested in the property. The court is
also empowered to give such further directions as
may be required in this behalf. A preliminary decree
in a partition action, is a step in the suit which
continues until the final decree is passed. In a suit
for partition by a coparcener or co-sharer, the court
should not give a decree only for the plaintiff's share,
it should consider shares of all the heirs after making
them parties and then pass a preliminary decree.
The words “declaring the rights of the several parties
interested in the property” in sub-rule (2) would
indicate that shares of the parties, other than the
plaintiff(s), have to be taken into account while
passing a preliminary decree. Therefore, preliminary
decree for partition is only a declaration of the rights
of the parties and the shares they have in the joint
family or coparcenary property, which is the subject-
matter of the suit. The final decree should specify the
division by metes and bounds and it needs to be
engrossed on stamped paper.”
Bimal Kumar v. Shakuntala Debi (supra)
“25. In the said case, after referring to Civil
Procedure Code by Mulla, this Court in Renu Devi
case [(2003) 10 SCC 200 : AIR 2003 SC 1608] , while
drawing a distinction between the preliminary and
the final decree, has stated that a preliminary decree
declares the rights or shares of the parties to the
partition. Once the shares have been declared and a
further inquiry still remains to be done for actually
partitioning the property and placing the parties in
separate possession of the divided property, then
such inquiry shall be held and pursuant to the result
of further inquiry, a final decree shall be passed. A
preliminary decree is one which declares the rights
and liabilities of the parties leaving the actual result
to be worked out in further proceedings. Then, as a
result of the further inquiries conducted pursuant to
the preliminary decree, the rights of the parties are
finally determined and a decree is passed in
accordance with such determination, which is the
final decree. Thus, fundamentally, the distinction

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between preliminary and final decree is that: a
preliminary decree merely declares the rights and
shares of the parties and leaves room for some
further inquiry to be held and conducted pursuant to
the directions made in the preliminary decree which
inquiry having been conducted and the rights of the
parties finally determined a decree incorporating
such determination needs to be drawn up which is
the final decree.
xxxx
32. It is well settled in law that a
preliminary decree declares the rights and
liabilities, but in a given case, a decree may
be both preliminary and final and that apart,
a decree may be partly preliminary and
partly final. It has been so held in
Rachakonda Venkat Rao v. R. Satya Bai
[(2003) 7 SCC 452 : AIR 2003 SC 3322]. It is
worth noting that what is executable is a
final decree and not a preliminary decree
unless and until the final decree is a part of
the preliminary decree. That apart, a final
decree proceeding may be initiated at any
point of time. It has been so enunciated in
Hasham Abbas Sayyad v. Usman Abbas Sayyad
[(2007) 2 SCC 355].” (Emphasis supplied)
Thus it is trite that a preliminary decree is a decree which
establishes the rights and liabilities of the parties but leaves
the actual outcome to be worked out through further
proceedings. Upon the necessary inquiries being completed in
accordance with the preliminary decree, the rights of the
parties are fully ascertained, and a final decree is passed
based on that determination.
13. It is only when the partition cannot be
conveniently made without further enquiry that a preliminary

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decree needs to be passed as envisaged under Order XX Rule
18 of the CPC. If the parties have filed a compromise petition
giving details of the shares to be allotted to each and details
of the further inter se transactions and arrangements, it is
not necessary to hold any further enquiry regarding
separation of joint shares held by the parties to the suit. This
is so since they themselves have partitioned and produced
relevant details of the type of decree to be passed. In such
cases there is no need to pass a preliminary decree. When a
decree is drawn up in terms of the compromise and there is
no challenge to the same by any of the parties to the suit
within the time prescribed by law for challenging it, then the
said decree can be executed at the instance of any of the
parties. The contention that a final decree ought to be drawn
up subsequent to such a compromise decree, treating the
same as a primary decree, and such final decree alone is
executable is untenable.
14. The learned counsel for the petitioner has placed
reliance on the dictum laid down in Mariamma Prince

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(supra) that a preliminary decree cannot be executed without
a final decree. The said judgment was rendered in a context
where a division of the property had to be affected. Allotment
of shares had to be made therein and the facts and
circumstances of that case required the appointment of a
commissioner to make allotment of shares of property to the
respective parties as per the preliminary decree. The facts
and circumstances of the case at hand are different and it
does not attract the application of the dictum laid down in
Mariamma Prince (supra). The contentions put forth by the
learned counsel for the petitioner in the said respect are only
to be rejected.
15. As regards the case at hand, the compromise
decree passed had finally adjudicated the matter between the
parties. Nothing remained to be adjudicated as far as the
dispute between the parties are concerned. Exhibit P2 decree
was fit to be treated as final decree and is executable. The
reference in the decree to the registration, which is otherwise
not required being excluded under Section 17 (2) (vi) of the

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Registration Act, 1908 cannot in the facts and circumstances
of the case, be a matter of consequence in deciding whether
the decree was executable or not. The learned Munsiff had
rightly rejected the contention of the petitioner that the
execution petition was premature. The conclusion arrived at
in Exhibit P6 order that the execution petition is
maintainable is valid and proper. I find no reason to interfere
with the same.
This O.P (C) is accordingly dismissed.
Sd/-
SYAM KUMAR V.M.
JUDGE
csl

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APPENDIX OF OP(C) NO. 1186 OF 2021
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE JUDGMENT IN O.S.NO.593/2015
DATED 10.1.2018 PASSED BY THE PRINCIPAL
MUSIFF'S COURT (EXECUTION), ALAPPUZHA.
Exhibit P2 TRUE COPY OF THE COMPROMISE DECREE IN O.S.NO.
593/2015 DATED 10.1.2018 OF THE PRINCIPAL
MUNSIFF'S COURT (EXECUTION) ALAPPUZHA.
Exhibit P3 TRUE COPY OF THE EXECUTION PETITION E.P.NO.
213/2018 IN O.S. NO.593/2015 DATED 20.9.2018
FILED BY THE IST RESPONDENT BEFORE THE
PRINCIPAL MUNSIFF'S COURT (EXECUTION),
ALAPPUZHA.
Exhibit P4 TRUE COPY OF THE NOTICE DATED 15.1.2019 ISSUED
TO THE PETITIONER IN E.P.NO.213/2018 IN
O.S.NO.593/2015 DATED 15.11.2019.
Exhibit P5 TRUE COPY OF THE OBJECTION IN E.P.NO.213/2018
IN O.S.NO.593/2015 DATED 25.07.2019 ON THE
FILE OF PRINCIPAL MUNSIFF COURT (EXECUTION),
ALAPPUZHA.
Exhibit P6 TRUE COPY OF THE ORDER DATED 9.4.2021 IN E.P.
NO.213/2018 IN O.S.NO.593/2015 OF THE
PRINCIPAL MUNSIFFS COURT (EXECUTION),
ALAPPUZHA.