The trial Court and/or execution Court can direct another mode of execution of the decree in its finality according to law.

This is a petition under Article 227 of the Constitution of India seeking quashing of order dated 26.03.2015 passed by learned Civil Judge, Senior Division, Kailashahar, under Unakoti Judicial District passed in Case No.T.S. 06 of 1986.

2. Lower Court records received.

3. Heard learned senior counsel, Mr. A. K. Bhowmik, assisted by learned counsel, Mr. R. Datta for the petitioners and learned counsel, Mr. G. K. Nama on behalf of respondent Nos.1 to 4 and learned counsel, Mr. D.C. Roy on behalf of respondent No.5.

4. Undisputed rather admitted facts are that T.S. No.06 of 1986(a suit for partition) instituted by predecessor of respondent Nos.1 to 4 against the predecessors of the present petitioners, was decreed by judgment and decree dated 16.09.1999 passed by learned Civil Judge, Senior Division, Kailashahar, North Tripura. The operative part of the judgment, which was reflected in the decree, reads as follows:-

“6. In view of the discussion made above, I am of the opinion that T.S. 10/84 should be dismissed on contest without cost and T.S. 6/86 should be decreed in favour of Dipankan Chatterjee and others for partition of the shares came to them by Ext. ‘D’ to the extent to the share of Sakhila Khatun, Islam Haji Sukkur, Baby Sukkur and Sabi Sukkur i.e. Dipankar Chatterjee & others are entitled to get 4687/100000 + 10938/100000 + 5469/100000 + 5468/100000 portion in the suit land.

Hence T.S. 10/84 brought by Nishi Rn. Deb Roy is dismissed on contest without cost and T.S. 6/86 brought by Dipankar Chatterjee and others is decreed and t he plaintiffs Dipankar Chatterjee and others are entitled to get 4687/100000 + 10938/100000 + 5469/100000 + 5468/100000 portion in the suit land and Minaz Haji Sukkur is entitled to 10938/100000 portion in the suit land and the parties are to make amicable partition within 60 days from the date of preliminary decree.

Prepare preliminary decree accordingly.

If the parties fail to cause amicable partition in terms of preliminary decree within the stipulated time given above, survey commissioner will be appointed on the prayer of either party to cause partition in terms of preliminary decree. On receipt of report of survey commissioner final decree will be prepared.”

5. The appeal filed by the defendants was dismissed by the first appellate Court. The second appeal filed by the defendants was also dismissed. The judgment and decree passed by the trial Court reached finality. The parties to the suit could not make partition of the property in terms of the preliminary decree.

6. It is also an undisputed rather admitted position that during pendency of the first appeal, Nishi Ranjan Debroy, the sole defendant died. The plaintiffs on 08.01.2007 filed an application before the trial Court under Order 1 Rule 10 of CPC praying for adding the legal heirs of Nishi Ranjan Debroy, i.e., the present petitioners, as party in the suit in place of Nishi Ranjan Debroy. Thereafter on 12.02.2007 Minaz Haji Sukkur, respondent No.5 herein, filed an application for passing final decree and the trial Court fixed both the petitions for order on a subsequent date. On 28.02.2007 another application was filed by the plaintiffs under Order 20 Rule 18 of CPC. All those petitions were taken up for order on 20.03.2007.

7. By order dated 20.03.2007 the Court directed substitution of legal representatives as per petition filed under Order 1 Rule 10(2) of CPC and at the same time allowed the petition filed under Order 20 Rule 18 read with Sections 54 and 151 of CPC and directed execution of the decree through the Collector of North Tripura District, Kailashahar. On 24.03.2015 the present petitioners filed an application before the learned Civil Judge, Senior Division, i.e. the trial Court, praying for recalling order dated 20.03.2007 on the ground that they were not heard while passing the order and that the decree should be executed as per the observation/direction of the trial Court in the decree i.e. by appointing a survey comm