JUDGMENT :

BISWANATH RATH, J.

1. This matter involves challenge to the order dated 3.2.2017 passed in T.S. No. 115 of 1996 (F.D.) in exercise of power under Order 20 Rule 18 of C.P.C.

2. Short background involved in the case is that the plaintiff-petitioner filed the T.S. No. 115 of 1996 (F.D.) for partition of the suit property claiming one sixth share in the suit property along with Ac. 0.76 decimals purchased by him out of the suit scheduled property. The suit was preliminarily decreed ex-parte against the defendants where the plaintiff was directed to be entitled to get one sixth shares towards his share and Ac. 0.76 decimals of land purchased by him from the share holders out of the suit property. It was also observed therein that failure in achieving an amicable partition of the suit property within the time framed, for partition of the suit schedule property through process of court on appointment of a civil court Amin commissioner. It also further reveals that after passing of the judgment and decree in T.S. No. 115 of 1996 the petitioner has subsequently purchased an area of Ac. 0.91 decimals out of the suit properties by virtue of a registered sale deed dated 22.01.2002 from the proforma opposite party who got the same by virtue of a gift deed executed by the deceased defendant no. 2 on 9.7.1991, in which both the defendants 2(a) and 2(b) had given their consent. The subsequent purchased land was also got mutated in favour of the proforma opposite parties in Mutation Case No. 5944 of 1992. Finding amicable partition of the joint properties involving the decree dated 20.1.1998, by meets and bounced was not possible due to non-cooperation of the opposite parties, the petitioner was compelled to file an application for final decree and also making an application for appointment of the Civil Court Amin Commissioner to make the partition of the suit property by meets and bounced with specific demarcation in the final decree proceeding. The petitioner filed a separate petition for modification of the preliminary decree dated 20.1.1998 passed in T.S. No. 115 of 1996 to include the subsequent purchase of land measuring Ac. 0.91 decimal or Ac. 0.89 decimals of the suit properties. The application was negatived on the ground that it will be amounting to modify the decree otherwise, which is not possible in a final decree proceeding.

3. Learned counsel for the petitioner taking aid of the provision contained in Order 20 Rule 18 of C.P.C. contended that for the provision contained therein a partition suit remain alive so long as final decree is not concluded and on every eventuality taking place after the decree in the partition suit can be taken care of in the final decree proceeding applying the above provision.

4. Relying on some decisions in the case of Phoolchand and Another vs. Gopal Lal, AIR 1967 SC 1470, Debendra Jena and Others vs. Umakanta Jena and Others, AIR 1988 Ori. 11 and Bhagabati Sahu and Others vs. Trilochan Sahu and after him Lakhpati Sahu and Others, 1989 (2) OLR 174, learned counsel for the petitioner submitted that the decisions have direct application to the petitioner’s case. Learned counsel for the petitioner accordingly submitted that the impugned order challenged herein not only remain contrary to the provisions of Order 20 Rule 1 of C.P.C. but also remain contrary to the settled position of law. Hence, learned counsel for the petitioner prayed for interfering with the impugned order and setting aside the same.

5. Opposing the stand taken by the learned counsel for the petitioner learned counsel for the opposite party nos. 1, 4 and 5 submitted that entertaining the claim of the plaintiff after the preliminary decree stage, will not only be amounting to interfere with the judgment and decree but such an attempt is also barred, as the executing court cannot go behind a decree. Learned counsel for the opposite party nos. 1, 4 and 5 taking this Court to the observations of the trial court involving the impugned