IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.935 of 2007 SUMENDRA PRASAD SINGH @ RAMA SHANKAR PRASAD SINGH, SONOF LATE AMARNATH PRASAD SINGH, RESIDENT OF VILLAGE SARE, TOLE CHAK MURAD, P.O. SARE, P.S. WARISNAGAR, DISTRICT-SAMASTIPUR. ………………………………DEFENDANT……..PETITIONER. Versus 1. SMT.RAM RATI DEVI @ MOST.NIRDHANIYA DEVI, WIFE OF LATE RAMESHWAR SINGH. 2. RAM KUMAR SINGH, SON OF LATE RAMESHWAR SINGH. BOTH RESIDENT OF MAUJA CHAK MURAD, P.O. SARE, P.S. WARISNAGAR, DISTRICT-SAMASTIPUR. …………………………PLAINTIFFS…..OPPOSITE PARTIES. 3. MOST. GIRIJA DEVI, WIFE OF LATE AMARNATH SINGH, RESIDENT OF VILLAGE AND P.O. SARE, TOLE CHAK MURAD, P.S. WARISNAGAR, DISTRICT-SAMASTIPUR. ……………………………..DEFENDANT-OPPOSITE PARTY. ……………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : Mr. Dronacharya, Advocate. For O.P. No.2 : Mr. Jitendra Kishore Verma, Advocate. --------- 3. 22.12.2009. Heard learned counsel for the petitioner and opposite party no.2. The defendant-petitioner is aggrieved by the order dated 24.3.2007/26.3.2007 passed in Final Decree Case No.190/73 by the Civil Judge, Senior Division No.I, Samastipur, whereby the prayer of the petitioner for staying the further proceeding in the aforesaid case had been rejected and the Survey 2 Knowing Pleader Commissioner had been directed to submit his report. It has been submitted on behalf of the petitioner that preliminary decree was passed ex-parte against this petitioner and Miscellaneous Case has been filed under Order IX Rule 17 for setting aside the ex-parte decree and the same is pending. Learned counsel further submits that final decree proceeding is also a proceeding for execution , thus, the same should be stayed till the disposal of the Miscellaneous Appeal. It is further submitted on behalf of the petitioner that in a case, filed against the order of abatement under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, a Full Bench of this Court in Hari Mohan Thakur and others Vs. Mahendra Narain Chand and others, reported in 1987 PLJR 88, had held that the process of final decree is also a proceeding towards the execution of the preliminary decree. Thus, in that view of the matter, it is submitted that since the final decree proceeding is the execution proceeding, the same should be stayed. Learned counsel for O.P. No.2 submitted that the aforesaid decision has been rendered in a different context and the same would not be applicable in this case. In that case, it has 3 been held by a Full Bench that since the execution proceedings have been ousted from the scope of Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, and in a suit for partition, the proceedings for preparation of final decree is nothing but a proceeding in the nature of an execution of the said preliminary decree which has already reached its finality, the same could not be held to have been abated. Learned counsel for O.P. No.2 has placed reliance upon a decision of this Court in the case of Devanand Singh and others Vs. Sarbanand Sinha and others, reported in 2003(3) PLJR 408, wherein it has been held that signing and sealing of final decree cannot be stayed as it amounts to stay of preparation of final decree. In that Judgment, a Division Bench decision of this Court rendered in LPA No.922 of 1999 (Prabhu Narayan Pandey and another Vs. Kalawati Devi and others) had been relied upon which is quoted as under: 3. x x x x x x “…….The proceeding for preparation of final decree cannot be stayed on the said ground as the preparation of final decree takes a number of years. The respondent no.1 in case of preparation of final decree can file an appeal and also pray stay of execution of final decree. We are of the view that the preparation of final decree should not have been stayed by the learned Single Judge. Accordingly, the order staying preparation of final decree is set aside.” 4 I find force in the submissions as raised on behalf of opposite party no.2. So far as partition suit is concerned, the same reaches its conclusion after preparation of final decree in accordance with the shares defined in the preliminary decree and is covered under the definition of Section 2(2) of the Civil Procedure Code which is quoted as under: “2(2): “Decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include- (a). any adjudication from which an appeal lies as an appeal from an order, or (b). any order of dismissal for default. Explanation:- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.” The appeal is provided under Order XLI of the Code of Civil Procedure for the purposes of challenging the original decree. Thus, in view of the aforesaid, there is no doubt that final decree is also covered under Section 2(2) of the Code of Civil Procedure and being so, there is provision for appeal under 5 Order XLI of the Code of Civil Procedure being the provision for appeal from original decree. Such being the situation the course open for the aggrieved party is to file appeal against the final decree after its preparation. If execution case has been filed for execution of decree, then a prayer for stay of execution proceedings could also be made in the appeal so preferred. However, the final decree proceeding is ordinarily never stayed. Thus, in view of aforesaid, even if the process of final decree is also a proceeding towards execution of the preliminary decree, the same cannot be stayed and the decision rendered by the Full Bench in Hari Mohan Thakur (Supra) would be of no help to the petitioner. In that view of the matter, I do not find any jurisdictional error committed by the court below in passing the impugned order. This Civil Revision is, accordingly, dismissed. P.S. (Dr. Ravi Ranjan, J)