Execution of a preliminary decree is not maintainable without a final decree, necessitating adherence to prescribed procedures for partition.

JUDGMENT :

Rule. Rule made returnable forthwith.

2. Heard learned Counsel for the petitioner.

3. By consent and on request of parties petition is taken up for final hearing at the stage of admission. Being aggrieved by the order dated 03/12/2024, passed below Exhibit 27 together with order dated 20/12/2024, passed below Exhibit 41 by the learned Civil Judge Senior Division, Amravati, in Special Darkhast No. 82/2024, by which, the learned Executing Court was pleased to allow the application file by the respondent for sending the precept to District Collector, Amravati, for execution of degree and appointment of Court Commissioner.

4. The respondent had filed suit for partition and separate possession against the petitioners and others in respect of two house properties and six agricultural land. The petitioners are the original Judgment Debtor Nos. 1 to 3 whereas, respondent No. 3 is the original degree holder in Special Darkhast No. 82 of 2024 filed for enforcement of the judgment and degree dated 14/11/2008, passed by the learned District Judge 3, Amravati. In Special Civil Suit No. 286/2005. The learned Trial Court vide judgment and decree dated 29/02/2006 decreed the suit in part thereby granting half share in favour of respondent/plaintiff in Field Survey No. 22/1/A(Gut No. 54), admeasuring 2H 7R of Village Shendola, Taluka Tiosa, District Amravati, 2008. The said order was challenged before the Appellate Court. The learned First Appellate Court vide judgment and degree dated 14/11/2008 set aside the judgment and decree dated 29/02/2006 and decreed the suit thereby granting half share to the respondent in all the suit properties. The aforesaid judgment is the subject matter of challenge in the present writ petition.

5. It is contention of the petitioner in view of the preliminary decree passed by the First Appellate Court, the proceeding for drawing or final decree ought to have been initiated by the respondent by making formal application as it is the final decree which is executable and not preliminary degree. Without initiating of the proceeding for final decree, the respondent on or above 05/08/2024 filed execution under Order 21, Rule 35 of the Code of Civil Procedure for enforcement of the judgment and decree dated 14/11/2008. The said execution was filed on 05/08/2024, was numbered as Special Darkhast No.82/2024.

6. Respondent filed application for sending the precept to District Collector and for appointment of Court Commissioner. The said application was at Exhibit 27. Upon hearing, the learned Executing Court was please to allow the application vide order dated 03/12/2024. By this order the Collector or any Gazetted Subordinate Officer of the Collector deputed by him in his behalf are directed to partition agricultural land which are mention in Schedule page No. 13 of original suit, mentioned in Special Civil Suit No. 286/2005, by metes and bounds as per shares declared in the judgment and decree. By the said order Advocate H.P. Jain came to be appointed as Court Commissioner for partition and separate position of house property. The present petitioner filed review application for review of order passed below Exhibit 27. In the said review, the order by Appellate Court is reproduced. The said judgment and decree was maintained up to the Supreme Court and preliminary decree passed by the Appellate Court is confirmed. Thus, proceeding between the parties comes to an end on 08/04/2024.

7. It was contention of the petitioner in review petition that preliminary decree is drawn between the parties declaring the respective shares in the suit scheduled properties. It is incumbent on plaintiff/decree holder to file application for final decree proceeding under Order 20, Rule 18 (1)&(2) of the Code of Civil Procedure before the Court and without passing the final decree by the Hon’ble Court the plaintiff/decree holder has started the execution proceeding on the basis of preliminary decree which is pre-matured one and is not maint