CRP 382/2002 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B. LOKUR Heard Mr P Roy, learned counsel for the petitioners and Mr GC Phukan, learned co unsel for the respondents. The petitioners are aggrieved by an order dated 22-7-02 passed by the learned Civil Judge, Sr Division No.2, Silchar in T Ex Case No.3/96. The petitioners had filed a suit and the prayer in the plaint was as fol lows :- The plaintiffs therefore pray for a decree :- i) For declaration that the plaintiffs are owner of 4/5th share of the jut right in the land described in the schedule 1 below and 4/5th share of the house described in the schedule 2 below and the defendant no.1 is entitled to only 1/ 5th share of the jute right in the land and in the house described I the schedul e 1 and 2 below and ii) For preliminary decree for partition of the jut land and house described in the schedule below and iii) For a declaration that the plaintiffs are entitled to purchase the share of the defendant no.1 under partition Act, and iv) For permanent injunction against the main defendants not to interfere wi th the possession of the plaintiff in the land and house described in the schedu le 1 and 2 below and v) For an order on the defendant no.1 to sell his share to the plaintiff an d not to outsider and vi) For payment of adequate compensation for the damage of the common pond a nd latrine which is tentatively fixed at Rs.100/- vii) For any other relief or reliefs to which the plaintiffs are entitled to get and viii) For the cost of the suit. By a judgment dated 30-4-93 the suit was decreed against defendant No.1 on admission and on contest against defendant No.2, as prayed for. The petitioner then filed T Ex Case No.3/96 for executing the judgment a nd decree dated 30-4-93 but the execution case was dismissed by holding as follo ws:- 22.7.2002 Both the parties are present through their ld. Advocate. Heard. Peru sed the case record. It appears that the decree on which the execution is filed is not drawn up in accordance with the judgment passed on 30-4-93. There ought t o have been a preliminary decree. Hence the execution is dismissed. Feeling aggrieved the petitioner is before me in revision. The very fact that the suit was decreed against both the defendants indi cates that a final decree was passed and not a preliminary decree. It is quite c lear that the learned Civil Judge, Sr Division No.2 was in error in coming to th e conclusion that only a preliminary decree ought to have been drawn up in respe ct of the judgment passed on 30-4-93. Learned counsel for the respondents has emphasized that the decree again st defendant No.2 was as prayed for . In this context he submits that the praye r in the plaint was also for a preliminary decree of partition and, therefore, o nly a preliminary decree should have been drawn up. Unfortunately, what learned counsel for the respondents has ignored is that the suit was also for a declaration that the plaintiff is the owner of a 4/5th share in the property in dispute and he is entitled to purchase the share of defendan t No.1. That being the position, what was passed was a final decree in respect o f both these prayers. If the property has to be partitioned that is another matt er altogether but to treat the judgment dated 30-4-93 as being only a preliminar y judgment requiring a preliminary decree would, in my opinion, be incorrect. Under the circumstances the revision petition is allowed and the order d ated 22-7-02 is set aside. The parties will now appear before the learned Civil Judge, Sr Division No.2, Silchar in T Ex Case No.3/96 on 26-11-2010. Send back the lower court records immediately.