B.P.JHA, J.

1. In this civil revision petition, the petitioner has challenged the latter portion of the order dated 9th April, 1981, passed by the Subordinate Judge, Siwan, in Execution Case No. 12 of 1979.

2. By the latter portion of the impugned order, the Court below is of opinion that the decree is inexecutable. The Court below is of the view that as the parties have compromised the suit, the decree cannot be executed.

3. This matter arises out of a final decree passed in a partition suit. By virtue of the preliminary decree, the petitioner was given one-third share in the suit properties. Partition Suit No. 524 of 1972 was filed by the plaintiff-opposite party No. 1 for partition of the joint family properties between the three sons of Braj Kumar Sahay. The three sons are Dr. Ayodhya Nath Sinha, Dwarika Nath Sinha (the plaintiff opposite party No. 1) and Dr. Kedar Nath Sinha (the petitioner). Therefore, each brother got one-third share in the suit properties. After the passing of the preliminary decree and during the pendency of the preparation for final decree, the parties entered into a compromise and the final decree was passed in terms of the compromise. The parties could not get delivery of possession according to the terms of the compromise and as such the petitioner levied Execution Case No. 12 of 1979 in the Court of the Subordinate Judge, Siwan, and prayed for delivery of possession. The petitioner deposited Rs. 200.00 as Commissioners fee for effecting delivery of possession in pursuance of the direction of the Court on 12-2-1981. By the impugned order, the Court below refused to recall the order dated 12-2-1981. Later on, by the impugned order, the Court below held that the decree was inexecutable on the ground that the parties had entered into compromise. It is against this part of the order that this civil revision petition has been filed by the petitioner before this Court.

4. In this case, a preliminary decree was passed granting one-third share to each of the three brothers, including the petitioner. Even if a compromise is entered into between the parties during the pendency of the proceeding for the preparation of the final decree, the parties are entitled to get delivery of possession over one-third share as mentioned in the final decree. The Court below was right in appointing a pleader commissioner by an order dated 12-2-1981 to provide separate share to each party. This order has not been recalled by the impugned order. Even if a compromise is entered into between the parties, the parties are entitled to get delivery of possession over the suit properties. Even if a preliminary decree is passed in a suit on the basis of a compromise, the parties are entitled to execute a final decree. On the basis of a compromise final decree, a party is entitled to execute the final decree for the purpose of getting delivery of possession. If delivery of possession is not effected, then the final decree remains inexecutable. It is the scheme of the Code of Civil Procedure that a final decree passed in a partition suit must be executed. In this view of the matter, I hold that the Court below erred in law in holding that the final decree is inexecutable. By entering into a compromise, the parties are not debarred from executing the final decree and in getting delivery of possession over the suit properties.

5. In this connection the Court below relied on a decision in Meghraj Sah V/s. Rajbansi Lal, AIR 1958 Patna 546. In that case it has been held that a declaratory decree, which merely declares the rights of the parties and does not direct any act to be done, is incapable of execution. So far as the present case is concerned, it is distinguishable and the decision in the case of Meghraj Sah V/s. Rajbansi Lal (supra) does not apply to the present case. In the present case, a preliminary decree was passed by which one-third share was allotted to each of the three brothers. On the basis of a preliminary decree,