JUDGMENT

(Dated this the 20^th day of February 2025)

The petitioner is the decree holder in O.S No.543/2011 on the files of the First Additional Sub Court, Thiruvananthapuram. After the passing of Ext.P2 decree, the petitioner filed E.P No.243/2021 for the execution of the said decree. In the said E.P, E.A No.75/2021 was filed to direct the judgment debtor to furnish the security for the plaint claim or to show cause why he should not furnish security and, in the meanwhile, order a conditional order of attachment of the scheduled property. The Trial Court, by Ext.P6 order, dismissed the application on the ground that the decree-holder could not produce any document to show that the judgment debtor had obtained separate possession of the attached schedule property in execution of the final decree concerned or otherwise.

2. The counsel for the petitioner, Smt.Ranjanie.R, submits that in Ext.P7 order, plot No.VI is specifically allotted to the judgment debtor in the suit. Therefore, the Trial Court is not justified in dismissing the application in toto. She points out that in Ext.P7, plot No.VI, along with Plot No.V, is allotted to defendants 1 and 6. It is also seen that there is a building situated in plot Nos. V, VI, VII and VIII and a part of the said building is dilapidated.

3. The counsel for the respondent, Sri.Rajesh Kannan, supported the order of the execution court and relied on the decision of the Apex Court in Ghantesher Ghosh v. Madan Mohan Ghosh and others (1996 KHC 1355) and contended that till the final decree for partition of a co-ownership property lis culminates into its full discharge and satisfaction, the between the contesting parties cannot be said to have come to an end. Therefore, the share allotted to the petitioner has not become final, and the co-shares have an option under Section 4 of the Partition Act, 1893, to buy the right of the building, which is in the share allotted to the petitioner.

4. The counsel also made available the decision of the Calcutta High Court in Bijan Kumar Ghosh v. Swapan Mondal (2024 KHC 2021), in which the decision in Bimalendu Chatterjee and others v. Sarita Chhyajlani and others (AIR online 2001 Cal.22) has been relied on, wherein it was held as follows:

25. A final decree for partition takes effect not from the moment of passing of the decree but from the time such decree is engrossed on stamp papers. Once it is so engrossed, the new separate title relates back to the date of passing of the decree. No execution can be started unless the decree is so engrossed. Thus, after a decree is drawn up on stamp papers, the joint title of the parties comes to an end and the parties cease to be co-

sharers.

5. The counsel for the respondent also relied on the decision of the Apex Court in Sharada Verma (Smt.) v. Dilip Gupta and others (2000 KHC 1668), wherein it is held that the right of pre-

emption under Section 4 of the Partition Act, can be exercised even at the execution stage. Therefore, the Trial Court is justified in dismissing the application, as the right of pre-emption still exists on the other co-shares.

6. Annex.A1 is the final decree passed in I.A.Nos.4135, 4146 and 642 of 2003 in O.S.No.1846 of 1999 dated 25.3.2003. The counsel for the petitioner contends that since the final decree is drawn and engrossed in the stamp paper, separate title in respect of each plot is allotted to the sharers and thus, the present respondent, being the 6^th counter petitioner in the application, and plot No.6 is allotted to the 6^th counter petitioner, the respondent cannot take up the contention now that separate plot is not allotted to them.

7. A perusal of Ext.P6 shows that the court below dismissed the application on the ground that the decree holder could not produce any document to show that judgment debtor had obtained separate procession of attachment of schedule property in execution of final decree or otherwise. The contention taken was that I.A.No.1001 of 2013 is pending for supplementary