IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5342/2007 Shri.Tanaji Tukaram Jadhav Petitioner Vs. Anandrao Bapu Ghate Jadhav & Ors. Respondents Smt.Sujata Mogre advocate for the petitioner Shri.P.S.Thorat,advocate for respondent no.1,2, 3-A and 3-B Coram : A.M.Khanwilkar,J. Date : 9th July,2008 P.C. 1] Heard counsel for the parties. 2] Rule. Rule returnable forthwith by consent .Respondents waive service through counsel . As short question is involved the petition is taken up for final disposal by consent. 3] This petition takes exception to the judgment and decree passed by the Civil Judge,J.D.Wai on 3-4-2007 below Exh.1 in R.D.No.2/99 .In the impugned order , the Court has observed that the practice of appointing Court Commissioner and then passing final decree appears to be irregular procedure. On that basis it proceeded to observe that no further order can be passed at the instance of the 2 petitioner. On that reasoning the Court below has completely ignored the grievance of the petitioner in respect of the Court Commissioner's report . 4] To my mind ,however,unless the grievance in relation to the Court commissioner's report is enquired into ,it would not be appropriate to continue with the enquiry for passing a final decree . For the steps to be taken in between the stages of preliminary decree and final decree as per order 21 of the Civil Procedure Code, one of the steps is to undertake enquiry on the basis of preliminary decree and submission of report in that regard which becomes the basis for passing a final decree. 5] Indubitably , it is only the final decree which is executable. If any authority is required,it will be useful to advert to the recent decision of the Apex Court in Hassan Abbas Sayyad V. Usman Abbas Sayyad reported in (2007) 2 SCC ,355.There is no dispute between the parties that the preliminary decree which has been passed is confirmed right up to the Supreme Court . That preliminary decree will have to be taken to its logical end and upon passing final decree the same can be executed in accordance with law . The final decree can be passed only after necessary enquiry is undertaken and report made available to the Court to pass such a final decree. From the impugned judgment it is seen that the Lower Court has made sweeping and uncalled for observations,much less contrary to the scheme of Order 20 and 21 of Civil Procedure Code. 6] In the circumstances this petition is allowed. The impugned 3 judgment and order is set aside and the parties are relegated to appear before the Lower Court for considering the matter afresh in accordance with law. As the Supreme Court has confirmed the preliminary decree as back in 2001 ,the Lower Court will keep that in mind and pass appropriate order expeditiously preferably within two months from the receipt of writ of this Court. (A.M.Khanwilkar,J.)