IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.956 of 2002 SURAJDEO PRASAD SAH Versus CHATURBHUJ PRASAD GUPTA & ORS ----------- 5 08.08.2008 Heard counsel for the petitioner and counsel for the opposite party No.3. Despite valid service of notice on opposite party Nos. 1 and 2 they have not appeared The grievance of the petitioner against the impugned order to a larger extent is justified, inasmuch as, when the compromise decree based on a compromise petition did not envisage partition of the two houses, the Executing Court could not have straight way proceeded to prepare a final decree for those two houses. However, taking into consideration that the intention of the parties even in that compromise petition was that the two houses shall also, though continue to remain joint, would be shared by four brothers the petitioners and opposite party Nos. 1, 2 and 3 in their equal share of 1/4 th share if one of the brother, opposite party No.3 wanted to have even the house demarcated for defining his share it was 2 essential for the Court below to first prepare a preliminary decree before proceeding to make a final decree. In that view of the matter, the impugned order cannot be sustained as it is well settled that the Executing Court cannot go behind the decree. Accordingly, the impugned order is set aside. At this stage, counsel for the opposite party No.3 however, submits that now when it is absolutely clear that out of the four brothers the opposite party No.3 wants his area to be demarcated in the two residential houses, a preliminary decree is required to be drawn. This prayer is not opposed by the counsel for the petitioner. In view of the fact that the Pleader Commissioner has already submitted his report in terms of the impugned order for the purposes of preparation of final decree, such report of the Pleader Commissioner will be treated to be one for demarcation and preparation of the preliminary decree in respect of two houses. Any objection which is sought to be filed on such report of the Pleader Commissioner must be filed 3 within a period of one month and thereafter the Court below will take expeditious steps to prepare and pronounce the preliminary decree within one month. Thereafter in accordance with law and keeping in view it is very old case the Court below will also ensure that upon making of this preliminary decree even the final decree is prepared and the entire execution proceedings in respect of the two houses also comes to an end within a period of three months from preparation of final decree. With the aforementioned observation and direction this Civil Revision application is disposed of. Bibhash (Mihir Kumar Jha, J.)