1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 493 OF 2008 SECOND APPEAL NO. 493 OF 2008 SECOND APPEAL NO. 493 OF 2008 Sou. Vidya Pramod Jagtap alias Mali & Ors. ... Appellants Versus Shri Rangrao Yashwant Jagtap @ Mali since deceased through heirs 1/1. Rahul Rangro Jagtap @ Mali & Ors... Respondents Mr. A.M.Kulkarni, Advocate, for the appellants. Mr. Sharmila W.Deshmukh,Advocate for respondent No.1. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 16th July, 2008. DATE: 16th July, 2008. DATE: 16th July, 2008. P.C. P.C. P.C. 1. With consent of the learned counsel for the parties, the Appeal is taken up for final hearing immediately. Heard the learned Counsel for the parties. 2. Regular Civil Suit No.136/1974 was filed by Rangrao Yashwant Jagtap against his brother Shankarrao Yashwant Jagtap and others. That suit was decreed on 28.6.1977. The appeal against that judgment also came to be dismissed by the High Court on 10.12.1991. As per that decree, the plaintiff was declared to have half 2 share in the suit properties. Only two properties were such which were in possession of defendant Nos. 3 to 5. In view of certain transaction which defendants Nos. 3 to 5 had Court had directed that those two properties be allotted to defendant No.1 in the partition so that possession of defendant Nos. 3 to 5 may not be disturbed. The Court directed that agricultural land shall be partitioned by the Collector or his gazetted subordinate appointed by him for that purpose. The Court also directed appointment of Commissioner for partition of the house property. Accordingly, preliminary decree was prepared. After dismissal of the Appeal, Darkhast No.26 of 1993 was filed by the defendant no.1. The matter was referred to the Collector for partition of the agricultural land and the Commissioner was also appointed for effecting partition of the house property. The Commissioner’s report was received and on 25.10.1996, the 2nd Joint Civil Judge, Senior Divisiion, Sangli as exeucting Court ordered in the execution proceedings that final decree as regards the allotment of shares as suggested by the Commissioner be drawn relating to the house properties and the same be engrossed on the stamp paper. It appears that thereafter on request of the decree holder possession warrant was issued in respect of certain house properties. 3 3. Five persons filed obstruction proceedings on the ground that they were already in possession as tenants in some of the house properties. It is not necessary to deal with their claims at this stage. Their objection came to be rejected. They preferred Regular Civil Appeal No.284 of 2001 against rejection of their objection by the executing Court. The appellate Court noted that final decree proceeding was not taken up but the executing Court had already proceeded with the matter for the purpose of appointment of Commissioner and, therefore, the objection on the ground that unless the final decree was passed, execution could not be taken up is hyper technical. With these observations, the appellate Court dismissed the appeal in respect of the parties. As far as appellant No.1 - Ramchandra Bhatt in the appeal was concerned, the appellate Court directed that warrant of delivery of possession shall be issued to obtain a symbolic possession in favour of the decree-holder. As Ramchandra Bhatt got certain protection by that order, he has not come before this Court. Admittedly, the three obstructionists, i.e. the appellant Nos. 2 to 4 before the District Court, have already vacated the premises. 4. Only Vidya Jagtap, who was obstructionist No.5 has 4 preferred the present Appeal along with other judgment debtors. She is the daughter-in-law of original defendant no.1/judgment debtor Shankarrao. She claims to be in possession of certain property as a tenant of her mother-in-law to whom the suit property was allegedly gifted by the judgment debtor. 5. The learned Counsel for the appellant contended that the Courts below have commenced the execution of the decree without the final decree being passed and therefore, it is illegal. The learned Counsel relied upon several authorities in support of his contention. In Annasaheb Rajaram Nagane and another vs. Rajaram Annasaheb Rajaram Nagane and another vs. Rajaram Annasaheb Rajaram Nagane and another vs. Rajaram Maruti Nagane and others 2001(3) Mh.L.J.53, Maruti Nagane and others 2001(3) Mh.L.J.53, Maruti Nagane and others 2001(3) Mh.L.J.53, the learned Single Judge of this Court had an opportunity to consider the legal position after referring to Order 20 Rule 18 and Order 26 Rule 13 of the C.P.C., the learned Judge observed as follows in paras 17 and 18 :- "17. The scheme of the Code makes it clear that after passing of preliminary decree for partition, the decree cannot be made effective without there being a final decree. Until rights in the final decree proceedings are worked out, qua all, and, till a final decree in that behalf is made there is no formal expression of the adjudication, 5 conclusively determining the rights of the parties with regard to the properties for partition in terms of decree, so as to entitle the party to make an application for execution of final decree. The final decree has to specify the division by metes and bounds and it needs to be engrossed on the requisite stamped paper(s). Until final decree determining rights of the parties by metes and bound is drawn up and engrossed on stamp paper(s) supplied by the parties, there is no executable final decree in the eye of law. Therefore, the executing Court cannot receive the preliminary decree unless final decree is passed as envisaged under Order 20, Rule 18 of Civil Procedure Code. After final decree is passed and direction is issued to pay stamp paper(s), it becomes executable or becomes an instrument duly stamped. Thus, the condition precedent is to draw up a final decree and then to engross it on stamp paper(s) of requisite value. These two acts put together constitute final decree crystallising the rights of the parties in terms of preliminary decree. Till such time, there is no executable final decree as envisaged under Order 20, Rule 18 of Civil Procedure Code. 6 18. It is settled position in law as found by the Division Bench of this Court in the case of Bashiruddin vs. Binraj 1987 Mh.L.J.30, that final decree proceedings are mere continuation of the preliminary decree proceedings and there is no executable decree unless final decree proceedings are finally disposed of. How they are to be disposed of is set out by me in the paragraphs supra." The learned Counsel for the appellant also relied upon the Supreme Court authority in Hasham Abbas Sayyad vs. Hasham Abbas Sayyad vs. Hasham Abbas Sayyad vs. Usman Abbas Sayyad and others 2007 (3) Mh.L.J. 56 Usman Abbas Sayyad and others 2007 (3) Mh.L.J. 56 Usman Abbas Sayyad and others 2007 (3) Mh.L.J. 56 wherein Their Lordships held that where a preliminary decree is passed without drawing a final decree proceeding, the Court cannot put the property on auction sale in execution. Therefore, it is now well-settled legal position that where a preliminary decree is passed for partition of property, the decree cannot be executed unless a final decree proceeding is taken up and final decree is actually passed. 6. Admittedly, in the present case, the decree holder did not file final decree proceeding, but directly filed execution proceeding, being Darkhast no.26 of 1994. It is an admitted position that without filingof the final 7 decree proceeding, the executing Court proceeded with the appointment of Commissioner to effect partition of the house property and on the basis of the report of the Commissioner, the executing Court also passed an order dated 25.10.1996 that the final decree be drawn relating to the house property and the same be engrossed on the stamp paper. Admittedly, the final decree has not been drawn nor it was engrossed on the stamp paper. However, the executing Court issued possession warrant in favour of the decree holder. In view of the legal position pointed out above, it is clear that the possession warrant could not have been issued unless final decree was passed and unless that property is put to execution. After some discussion at the Bar, the learned Counsel for the respondent decree holder has conceded the legal position. Therefore, it must be held that the possession warrant issued by the Executing Court against the obstructionist Vidya Pramod Jagtap, appellant No.1 before this Court, could not be supported and maintained. The suit was decreed in 1977 and the appeal was dismissed in 1981. The execution proceeding was filed in 1993. A very long period has been lost in prosecuting a wrong proceeding without taking up the final decree proceeding as required by law. As already pointed out, in the execution proceeding itself the Court had passed an order for appointment of 8 Commissioner and the Commissioner’s report was received. The learned Counsel for the parties state that whatever is needed to be done in the final decree proceeding but which has been done in the execution proceeding may be utilised in the final decree proceeding which may be commenced by the decree-holder now. 7. In view of the above legal position and facts, the Appeal is allowed. The obstruction raised by the appellant no.1 - Vidya Pramod Jagtap is allowed only on the ground that the possession warrant could not be issued against her unless the final decree was passed. The warrant issued against her stands quashed. The decree holder shall be at liberty to file final decree proceedings. The learned Counsel for the decree-holder/respondent states that final decree proceeding shall be filed within one month from this date. If it is so filed, the order passed by the executing Court for appointment of Commissioner for effecting partition of the house property shall be deemed to have been passed in the final decree proceeding and the report filed by the Commissioner for that purpose may be utilised in the final decree proceeding and the learned Judge dealing with final decree proceedings shall dispose of the same as early as possible, and in any case, within six months from this 9 date. 8. As the Second Appeal itself is finally disposed of, C.A. No.614 of 2008 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)