The necessity of a final decree for enforcement and the inapplicability of Order XX, Rule 18 CPC when a final decree has not been passed.

The sole question which falls for consideration in this civil revision is, whether the learned Civil Judge (Junior Division), Sonamura, West Tripura is correct in rejecting the application of the petitioner for filing written objection against the application of the respondent No.1 for appointing a survey commissioner for identifying the individual shares of the parties by metes and bounds so as to facilitate the passing of the final decree.

2. The facts, which are material for disposal of the civil revision, are not in dispute. The first appellate court set aside the judgment of the trial court dismissing the suit of the petitioner and decreed as follows:

“The appeal is allowed on contest without cost. Consequently, the judgment passed by the Ld. Trial Court in T.S.(P) No.02/2009 is set aside and reversed, i.e. preliminary decree is passed in T.S.(P) No.02/2009 declaring 1/7th share of each of the plaintiffs and principal defendants by metes and bounds provided that the land measuring 0.60 acre be shown against the share of the plaintiff No.2 (Smti. Nihar Bala Deb).

The parties are to make amicable partition of the suit land within 3 months from the date of present judgment and decree. Failure to make amicable partition by each of the parties to the suit may approach to the Collector, West Tripura, Agartala as required by the Order XX, Rule 18, Civil Procedure Code for partition.”

According to the respondents, though three months have lapsed, the petitioners are resisting partition of the suit land as per the said preliminary decree of the appellate court, which prompted them to file the application for identifying their individual shares in the land sought to be partitioned by appointing a survey commissioner. The petitioner opposed the said application and sought for time to file a written objection. As already noted, the trial court by the impugned orders dated 2-11-2016 and dated 3-1-2017 declined to grant the time. Aggrieved by this, this civil revision is filed by the petitioner.

3. It is seen from the impugned orders that there are two aspects to be kept in mind in the instant case. The petitioner firstly wants to file a written objection and secondly, wants time to file the written objection. Whether the concept of filing written objection finds a place when the respondents are filing the type of application, which is meant for separation and identification of the shares of the individuals in the suit land sought to be partitioned? It is the contention of Mr. R.G. Chakraborty, the learned counsel for the petitioner, that once such an application is filed by the respondents, the judgment debtor like the petitioner herein has the right to be afforded an opportunity to oppose the same and this is what he did before the trial court; the trial court is clearly acting contrary to law in rejecting his application for time to fie the written objection. Moreover, submits the learned counsel, the trial court has failed to consider the provisions of Order XX, Rule 18, CPC in passing the impugned orders. He, therefore, contends that the impugned orders are liable to be set aside and the petitioner should be permitted to contest the said application of the respondents by filing the written objection. Mr. B.N. Majumder, the learned counsel for the respondents, supports the impugned orders, and submits that no jurisdictional error is committed by the learned Civil Judge which calls for the interference of this Court.

4. As already noticed, the appellate court has already passed a preliminary decree declaring the respective shares of the parties to the suit and directed the parties to amicably partition the suit land failing which they might approach the Collector as required by Order XX, Rule 18 CPC. No appeal was preferred by the petitioner against the preliminary decree. Section 97 of the Code of Civil Procedure provides that where any party aggrieved by a preliminary decree does not appeal from such a decree, he shall