1 WP 8548.2009 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8548 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. N.V.Gaware, Advocate for the petitioners. Mr. G.B.Rajale, Advocate for Resp.6-A to 6-G. Mr.N.C.Garud, Advocate for Resp. No. 1. ............................ CORAM : S.V. GANGAPURWALA, J. DATE : 20/07/2011 PER COURT : 1. The petitioner is the original defendant. The present respondent filed Suit for partition and separate possession. The Court decreed the Suit and passed preliminary decree. Thereafter, in final decree proceedings, the present petitioner moved an application on the ground that the Court while passing preliminary decree, have not properly carved out shares and an objection was raised regarding the allocation of the shares. The said application is rejected by the trial court. Aggrieved thereby, the petitioner has filed the present Writ Petition. 2 WP 8548.2009 2. Mr. Gaware, the learned counsel for the petitioner submits that the Court has merely passed the preliminary decree and before the final decree is passed, the Court can vary the shares. The trial Court has decided the application as if it was deciding the said application in an execution petition. No execution petition can be filed till the final decree is prepared. According to the learned counsel, the Court while passing the preliminary decree, has committed an error in calculating the shares. It could not have granted 1/3rd share to the legal representatives of Dulhe Khan. This aspect needs to be considered. 3. Mr. Rajale, the learned counsel for the respondent nos. 6-A to 6-G supports the arguments of Mr. Gaware. 4. Mr. N.C.Garud, the learned counsel for the respondent no. 1/original plaintiff submits that the preliminary decree has not been challenged. In view of that, the petitioner could not have resisted the further proceedings on the ground that the shares have not been properly allocated. 5. If a party is aggrieved by the preliminary decree, the substantive remedy of Appeal is available to the party. In the present case, the said 3 WP 8548.2009 preliminary decree passed by the Court specifying the shares of each of the party, has not been assailed before the appellate forum. There are no subsequent events by virtue of which the shares allotted by the Court while passing the preliminary decree can said to have been changed. While preparing the final decree, the allocation of shares can be changed, only if some subsequent events takes place i.e. in a case if one of the sharers to whom the share is allotted, dies or for some other eventuality. No such eventuality has taken place in the present matter. 6. In view of the above, no error has been committed by the Court below while passing the impugned order. The Writ Petition as such is dismissed. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 8548.2009