IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1180 of 2005 RAM KUMAR RAI Versus JANG BAHADUR MIAN & ORS ----------- 11 22/7/2008 Heard counsel for the parties. Here is a case where on a definite representation made by the plaintiffs-opposite parties that the suit was being compromised only in respect of one plot being plot no. 1400 and a compromise decree was passed and at that point of time the defendant petitioner was shown the door of the Court by holding that for the remaining plots of land suit was not maintainable as it had stood abated under section 4(1)(c) of the Consolidation Act. Later on, those who had represented before the Court that the suit had abated, took a plea that the suit had not abated because the lands was not covered by the provisions of section 4(1)(c) of the Consolidation Act. The petitioner had accordingly approached the court below at the execution stage with a claim that it was a partition suit and therefore he too had his defined share in it as the parties had agreed that the decree in question has to be executed in respect of share of all the persons and as such his share must be allocated by carving out a separate Takhta. That prayer has been rejected by the Executing Court by the impugned order on the ground that there was nothing in the decree to show that any relief was given to the petitioner nor there was any direction for carving out 2 separate Takhta in his favour. On that basis after the petitioner had been shown the door he has approached this Court complaining that infact there was no decree for partition of remaining property and yet for others the Executing Court had proceeded to carve out separate Takhta. Counsel for the plaintiff- opposite party while disagreeing with the submissions of the counsel for the petitioner had sought to defend the impugned order by taking a stand that in the decree there was no relief given in favour of the petitioner so as to be allotted his separate Share (takhta) but then he could not show that any decree was passed even in his favour save and except, for plot no. 1400. Accordingly, counsel for the plaintiff opposite party had no option but to concede that the executing court had gone beyond the decree while passing the impugned order. In that view of the matter, this Court on the aforementioned admitted facts would find that the impugned order is manifestly vitiated by both the material irregularities as also jurisdictional error and accordingly the impugned order dated 23.3.2005 is hereby quashed. The court below now is first directed to prepare a preliminary decree for the remaining land taking into account that it was a partition suit in which every one had a share to the extent stated in the plaint and admitted in the written statement. On the basis of such, the court below 3 will first prepare a preliminary decree in favour of all the parties including the petitioner and thereafter would take steps for preparation final decree in accordance with law. With the aforesaid observations and directions this application is accordingly allowed. ( Mihir Kumar Jha, J. ) Abhay Kumar