WA 253/2008 BEFORE HON’BLE CHIEF JUSTICE J.CHELAMESWAR HON’BLE MR.JUSTICE HRISHIKESH ROY Heard Mr NC Das, learned senior counsel for the appellant and Mr H Deka, learned counsel for the respondents Aggrieved by the judgment and order dated 22-7-08 in WP(C) No.5333/07 th e third respondent in the writ petition filed the present appeal. The appellant herein filed Title Suit No.35/2000 on the file of the Civ il Judge (Senior Division) No.1, Guwahati praying for (i) a decree of declaring the right, title and interest of the plaintiff over the suit property, (ii) a de cree for recovery of khas possession of the suit property by evicting the defend ant Nos.2 to 5 therein, who are the writ petitioners, and certain alternative pr ayers, the details of which may not be necessary for the present. Initially the suit was dismissed by judgment and decree dated 16-2-05. Aggrieved by the same t he appellant herein preferred an appeal to the court of Addl District Judge, Kam rup in Title Appeal No.4/05. By judgment dated 20-3-06 the appeal was partially allowed. The relevant portion of the judgment of the above mentioned appeal is a s follows :- ISSUE NO.6 In this issue, it was to be decided whether the plaintiff is entitled to any other relief or reliefs. In view of the above discussion and decisions in issue No.1,2 & 4 the pl aintiff is entitled to a decree for partition in respect of his definite 2/3rd s hare over the properties as described in schedule to the plaint. Subsequently the appellant herein filed an application for execution of the decree passed pursuant to the above mentioned appellate judgment. In the said application the executing court, i.e. Civil Judge, Sr Divn N o.1, Guwahati issued a precept directing the Deputy Commissioner, Kamrup as foll ows :- Upon hearing the learned counsel for the Plaintiff Decree-holder stating t hat Hon’ble Additional District Judge, Kamrup, Guwahati vide judgment and decree dtd 20.3.06 passed in T.A. number 4/2005 the Plaintiff/Decree Holder Md Jehiru ddin Ahmed is entitled to a decree for partitions in respect of his definite 2/3 rd share over the properties mentioned in the Schedule ’A’. It is ordered that this precept be sent to the Collector, Kamrup, Guwaha ti with a direction to partition in respect of Plaintiff/Decree-Holder’s 2/3rd share over the land mentioned in schedule ’A’ by mets and bounds and to mutate t he land in his name as the absolute owner and to hand over the possession of the said land to Plaintiff/Decree-Holder mentioned in schedule ’A’. Pursuant to the said precept the judgment-debtor/ writ petitioners were evicted from the suit property. Therefore, they approached this court by way of a writ petition. By judgment under appeal a learned Judge of this court was plea sed to allow the writ petition. The learned Judge in substance held that the pre cept was in excess of the decree granted by the appellate court in TA No.4/05. It may be necessary to mention that in partially allowing the TA No.4/05 the appellate court held that the appellant herein is only entitled for a parti tion in respect of his 2/3rd share as described in the schedule of the plaint. T he decree was drafted pursuant to the above appellate court’s judgment in tune w ith the language of the judgment. The decree also mention only about partition o f the property. Both the appellate court judgment and the decree is silent about delivery of the property to the appellant herein. Whether such a silence is acc idental or for any other reason is immaterial for us in the present appeal. In o ur view the learned Single Judge rightly allowed the writ petition on the ground that the absence of a decree for delivery of possession of property the precept such as the one which was in challenge before the learned Single Judge could no t have been issued. If the appellant herein/plaintiff for any reason believes th at he is also entitled for a decree of delivery of possession of the suit proper ty or any part thereof he ought to have taken appropriate steps consequent upon the passing of the limited decree by the appellate court. He having failed to ta ke any consequential legal steps for securing the decree of delivery of the immo veable property he could not have sought the precept such as the one which is se t aside by the judgment under appeal. We, therefore, find no merit in the appeal. The appeal is dismissed at t he admission stage.