JUDGMENT :

1. The present petition is filed by the petitioners, being aggrieved by orders passed by the Jt.Civil Judge, Sr.Division Sangamner below Exhs.23 and 28 in the execution proceedings and it is prayed that the order is (Darkhast No.64/2015) is non-est, since what is executable is a final decree and not a preliminary decree. This is the precise ground on which the writ petition is filed.

2. Heard the learned counsel Shri.S.S.Dixit for the petitioners and learned counsel Shri.K.N.Shermale for the respondents.

In order to appreciate the bone of contention between the parties, brief facts involved chronologically need a mention.

Respondent Nos. 1 to 3 filed Regular Civil Suit No.212/2012 against the petitioners and respondent Nos. 4 to 9 for partition and injunction. The suit came to be decreed on 16/02/2015, declaring that plaintiffs and respondent Nos. 1 to 6 have 1/2 share in the suit property. It was further directed that since the suit property was a house property, after appointing a commissioner, the partition shall be effected as per the share determined in the judgment. As far as mesne profit is concerned, an enquiry was directed to be initiated. The judgment dated 16/02/2015 directed a preliminary decree to be drawn.

3. Being aggrieved and dissatisfied by the judgment passed in RCS No.212/2012, the petitioners/the judgment debtors filed Regular Civil Appeal No.47/2015 before the District Judge, Sangamner, which is pending for adjudication without any orders being passed, granting stay to the effect and operation of the judgment impugned.

4. On 06/04/2015, the respondents to the suit i.e. 1 to 3 filed execution proceeding, seeking execution of the preliminary decree drawn in RCS No.212/2012. On 23/03/2017, an application was moved by the decree holder vide Exh.16 for appointment of Court Commissioner for effecting partition and the learned Executing Court by it's order dated 23/03/2017 appointed Court Commissioner and issued directions of partitioning the suit house and submit it's report. In furtherance of the said order, the Court Commissioner carried out the commission on 15/07/2017 and filed his report alongwith a map (Exh.22) on 21/07/2017. Upon the report being filed, the decree holder moved an application at Exh.23 for effecting partition of the suit property in terms of the aforesaid report of the Court Commissioner. This was vehemently objected to by the petitioners/judgment debtors by filing their say and the thrust of the submission is that the final decree is yet to be passed and therefore the partition cannot be effected based on Exh.22.

5. On 27/06/2018, the Executing Court allowed the said application and directed the Court Commissioner to effect the partition in terms of the report at Exh.22. This constrained the petitioners to approach this Court by filing a writ petition, vide WP No.184/2018 and this Court, on consideration of the rival pleadings and by making a reference to the provisions of Order XX Rule 18 and the decision of the Apex Court in case of Renu Devi Versus Mahendra Singh and others [(2003) 10 SCC 200], which carved out an exception to the said provision, when a preliminary decree for all practical purposes is a final decree, noted that while passing the impugned order, the learned Judge did not advert to the various circumstances, which may lead to the conclusion that for all practical purposes, a preliminary decree in a given case can be treated as a final decree and by recording that the impugned order do not reflect any such inquiry being made to pose an exception to the provision of Order XX Rule 18, disposed off the writ petition with the following directions :-

"7. Accordingly, writ petition is disposed of setting aside order dated 27 June 2018. The learned Civil Judge will decide the application below Exh.23 afresh in the light of above observations. Considering the fact that the proceedings are is pending since long, the learned Civil Judge will expedite disposal of the proceeding