C. R. No. 2799 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 2799 of 2010 Date of Decision : April 29, 2010 Raj Kumar .... Petitioner Vs. Rameshwar Dass .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Amit Mehta, Advocate for the petitioner. * * * L. N. MITTAL, J. (Oral) : Judgment Debtor (JD) Raj Kumar has filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 22.03.2010 (Annexure P-5), passed by learned Executing Court i.e. learned Additional Civil Judge (Senior Division), Kurukshetra, thereby dismissing application/objections filed by petitioner JD for dismissal of the execution petition moved by Decree Holder (DH) – respondent Rameshwar Dass. Learned Civil Judge (Junior Division), Kurukshetra, vide judgment dated 31.01.1997 (Annexure P-1), decreed the suit filed by respondent Rameshwar Dass against petitioner Raj Kumar in the following terms :- “In view of my forgoing discussion, I am of the considered view that plaintiff has been able to prove his case successfully and C. R. No. 2799 of 2010 2 suit of the plaintiff is hereby decreed with costs and plaintiff is held to ½ share by way of partition by metes and bounds and decree is passed accordingly. Decree sheet be prepared accordingly and file be consigned to record room.” The said judgment has attained finality. DH respondent filed execution petition (Annexure P-2) praying inter alia that Local Commissioner be appointed to partition the suit property by metes and bounds and to put the DH in exclusive possession of half share of the suit property as exclusive owner. Petitioner JD filed application (Annexure P-4) for dismissing the execution petition as premature alleging that only preliminary decree for partition was passed and the DH has not obtained final decree of partition and therefore, preliminary decree cannot be executed. Respondent DH filed reply (Annexure P-3) to the objections raised by the petitioner JD. Learned Executing Court, vide impugned order dated 22.03.2010 (Annexure P-5), dismissed the application Annexure P-4 moved by petitioner JD for dismissal of the execution petition. Feeling aggrieved, the JD has filed the instant revision petition. I have heard learned counsel for the petitioner and perused the case file. Learned counsel for the petitioner vehemently contended that vide judgment dated 31.01.1997 (Annexure P-1), only preliminary decree for partition of suit property was passed and without obtaining final decree of partition, respondent DH is not entitled to file execution petition. The contention, although apparently attractive, is devoid of any merit. Judgment Annexure P-1 does not say that it is preliminary decree for partition. In view thereof, respondent DH filed execution petition. However, even in the C. R. No. 2799 of 2010 3 execution petition, respondent DH made prayer for appointment of Local Commissioner to partition the suit property by metes and bounds and to put the DH in exclusive possession of half share of the suit property as exclusive owner because vide judgment Annexure P-1, the plaintiff was held entitled to half share of the suit property by partition by metes and bounds. Consequently, prayer made in the execution petition filed by respondent DH is in accordance with the decree passed by the Court. The execution petition in substance is also application for preparation of final decree as well as for execution of the decree for putting the DH in possession of his half share. Since the trial court did not pass preliminary decree, the DH filed execution petition straightway. The petitioner JD has not suffered any prejudice by filing of execution petition by respondent DH because even pursuant to the execution petition, Local Commissioner has to be appointed to partition the suit property by metes and bounds, as would be the position, if application for preparation of final decree had been moved. The Court has to go by substance and not by form. In view of the aforesaid, I find no illegality in the impugned order of the Executing Court, so as to warrant interference at the hands of this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is found to be without any merit and is accordingly dismissed in limine. April 29, 2010 ( L. N. MITTAL ) monika JUDGE