Calcutta High Court
Sri Susanta Dey & Ors vs Sri Nandalal Dey And Ors on 4 September, 2025
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OD-20
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
Ordinary Original Civil Jurisdiction
IA NO. GA/29/2025
In
CS/911/1988
SRI SUSANTA DEY & ORS. VERSUS SRI NANDALAL DEY AND ORS.
Before:
The Hon'ble Justice BISWAROOP CHOWDHURY
Date: 04st September 2025
Appearance
Mr. Sakya Sen, Adv.
Ms. Sormi Dutta, Adv.
Mr. Meghnad Dutta, Adv.
Mr. Sayak Konar, Adv.
Mr. Arun Kr. Das, Adv.
The Court: This application is filed by the Petitioners/Plaintiff Nos. 1(c), 1(d) and 1(e)
with the following prayers:
a) Delay in filing the instant application be condoned and abatement if any be
set aside.
b) Death of the plaintiff Nos. 1(b), 1(f) and the defendant No.5 be recorded.
c) The plaint be amended in the manner as shown in the red ink in a copy of
the proposed amended plaint being annexure 'S' to the instant application.
d) Department concerned of this Hon'ble Court be directed to carry out the
order within a period of two weeks from the date of the order to be made
herein.
e) Leave be granted to the petitioners to re-verify and/or re-affirm the plaint
filed in the instant suit upon amendments being carried out.
f) The service of fresh unit of summons upon the substituted plaintiffs and
defendants be waived.
g) Costs of and incidental to this application be costs of the case.
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h) Ad-interim orders in respect of the prayers above.
i) Such further or other reliefs as your Lordships may deem fit and proper.
A preliminary point is taken by Learned Advocate for Defendant no. 18B, 18C
and 18D that the application is not maintainable as the suit is disposed.
Learned Advocate in support of the stand taken by him has relied upon the
following decrees and orders.
A. Preliminary Decree, dated 17/09/2002 declaring shares with respect to 5
properties and appointing partition Commissioner to submit report within 6
months.
B. Order dated 16.1.2003 incorporating two more properties in the list of
undisputed properties which were inadvertently missed out.
C. Final decree dated 11-08-2025 based on the Return filed by the
Commissioner with respect to the undisputed properties and with respect to
the disputed properties the relief claimed was rejected.
D. By order dated 05-09-2012 appeal being APD No. 8 of 2010 filed by the
Defendant no. 3 and 6 against the final decree and judgment dated
11.08.2005 was disposed of keeping the operation of the final decree in
abeyance and giving liberty to the appellants therein to file an application
taking exception to the report of the Commissioner. It was specifically
observed in the said order that in the event the application did not succeed
the final decree so passed shall stand revised.
E. By order dated 04-4-2014 the application challenging the report of the
Commissioner was dismissed with the observation that there is no reason to
set aside the Return filed by the Commissioner of partition.
F. By Order dated 28.08.2014 the Appeal being APO No. 222 of 2014 which
was preferred against Order dated 04-4-2014 was dismissed.
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G. By order dated 09.03.2016 Learned Co-ordinate Bench was pleased to
consider the Execution case being EC No. 143 of 2009 by directing the
Special Officer for handing over notional possession to the defendants with
respect to the properties mentioned therein.
H. By Order dated 14-06-2016, the Learned Co-Ordinate Bench was pleased to
dismiss the Execution Petition being EC 143 of 2009 recording satisfaction
of the decree.
I. By Order dated 13-07-2018 application filed for recalling order dated 14-06-
2016 was dismissed.
Learned Advocate for the petitioner/plaintiffs submits that the instant suit is
for partition and administration between the family members of two sons of one Late
Rasik Lal Dey. A preliminary decree was passed in respect of 50% shares of five
properties and remaining 50% shares of the some properties have remained
undeclared till date. Later on by an Order dated 16.01.2003 two more properties
were included in the preliminary decree and the Joint Commissioner of Partition was
appointed. Learned Advocate further submits that plaintiffs had preferred an appeal
against the final decree and the Hon'ble Division Bench was pleased to allow the
plaintiffs to file an application to take an exception to the Return of the
Commissioner. The final decree was kept in abeyance for thirty days. It was clarified
that in the event this applications of taking exception fails the final decree passed
shall stand revived. The application for taking exception to the final report was
dismissed by the Learned Trial Judge with the following observation.
'The point urged before me on behalf of the plaintiffs that the final decree dt.
11.08.05 disposed of the suit for partition partially did not appear to be taken before
the Appeal Court by the plaintiffs who were the appellants there. Parties were bound
by the final decree dated 11.08.05 and the judgment of the Division Bench dated
05.09.12. In such view the contention on behalf of the plaintiffs in that regard could
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not be accepted.'
An appeal was preferred against Order dated 4-04-2014 and by Order dated
28-08-2014, the Hon'ble Division observed as follows:
'According to the plaintiffs, the final decree dated August 11, 2005 considered
partition suit partially which was not challenged by the plaintiffs who were the
appellants there. Therefore parties were bound by the final decree dated 11.08.05
and the judgment of the Division Bench dated 05.09.12. this contention according to
us seems to be erroneous.'
Learned Advocate also submits that in view of the order of the Hon'ble Division
Bench the suit is still alive and the Executing Court has erroneously proceeded with
execution. It is submitted by the Learned Advocate that the Court can proceed to
decide finally what is the respective share of each of the parties 8 to the suit so far as
the residuary properties and business depending upon the evidence recorded by the
Commissioner. It is also open to the plaintiffs to seek relief of permitting them to lead
evidence if they have not done so. It is further submitted that the petition upon
which the said judgment dated 04.04.2014 was passed by the Hon'ble Division
Bench the decree is still kept in abeyance. Under the circumstances the question of
reviving the decree cannot and does not arise. The question of execution also does
not arise. The Court has erroneously proceeded with execution. As long as the decree
is kept in abeyance the Executing Court does not have the power to proceed with
execution. The suit is still alive in respect of each of the properties mentioned in the
schedule F, G, and H of the plaint.
As argument is advanced by the petitioner that the suit is still alive and the
executing court does not have the power to proceed with the Execution this Court is
of the view at the very outset it is to be remembered as a Learned Co-ordinate Bench
upon hearing the parties observed that the Court can proceed with the Execution
such issue cannot be re-opened as this will amount to sitting in appeal over the order
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of Co-ordinate Bench which is not permissible under law.
However as the Learned Advocate for the petitioner sought to rely upon the
observation made by the Hon'ble Appeal Court to justify that the suit is alive it is
necessary to quote the relevant observation in this regard.
The Hon'ble Appeal Court in APO No 222 of 2014 by Order dated August 28,
2014, was pleased to observe as follows:
'As stated above the Court can proceed to decide finally what is the respective
share of each of the parties to the suit so far as the residuary properties and
business depending upon the evidence recorded by the Commissioner. It is also open
to the plaintiffs to seek relief of permitting them to lead evidence.'
Thus it will appear that although the Appeal was dismissed but liberty was
granted to the plaintiffs to seek relief of permitting them to lead evidence if they have
not done so. Although leave was granted plaintiffs/petitioners chose not to file any
application in this regard prior to the execution of the decree. Without necessary
application it cannot be held at this that suit still survives.
Now the question which comes for consideration is whether there can be more
than one final decree in a partition suit.
In the case of Shankar B. Lak hande V Chyandrakanti S. Lakhande reported in
(1995) 3 SCC. P. 413 the Hon'ble Court observed as follows:
'7. Question is whether the aforesaid view is correct? Since the decree is one
which is prior to the Limitation Act, 1963, we are to look to the provisions contained
in the Limitation Act, 1908, (for short, 'the old Act'), for deciding the
controversy. Article 182 of the First Schedule to the old Act envisages that "for the
execution of a decree or order of any civil court not provided for by Article 183 or
by Section 48 of CPC, the period of limitation of three years begins to run from the
date the final order was passed on an application made in accordance with law to the
proper court for execution, or to take some step in aid of execution of the decree or
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order. Explanation 1 provides that
"where the decree or order has been passed severally in favour of more persons
than one, distinguishing portions of the subject-matter as payable or
deliverable to each, the application mentioned in note 5 of the article shall take
effect in favour only of such of the said persons or their representatives as it
may be made by. But where the decree or order has been passed jointly in
favour of more persons than one, such application, if made by any one or more
of them, or by his or their representatives, shall take effect in favour of them
all."
Therefore, it would be clear that where decree or order has been passed jointly
against more persons than one, the application shall take effect against them all,
even if it is made by one or more. It is seen that the preliminary decree is a
declaration of the rights of the parties with a charge on the properties to be allotted
and a Commissioner is required to be appointed for partition of certain specified
properties. Therefore, as envisaged in sub-r. (2) of Rule 18 of Order 20, it was only a
preliminary decree declaring the rights of the parties with power to the court to give
further directions in that behalf It is settled law that more than one final decree can
be passed. With the passing of the final decree in respect of the share of the first
respondent, the rights of the parties in respect of other properties have not been
crystallised and no final decree dividing the properties by metes and bounds was
passed nor any application was made to divide the properties in term's of the shares
of the parties declared in the preliminary decree.'
As partition Suit can also be said to be a suit for Administration more than one
final decree can be passed to prevent multiplicity of litigation if all properties are not
taken into consideration while passing Final Decree.
The Learned Co-ordinate Bench while dealing with the execution case EC-143
of 2009 also observed as follows:
'Though Mr. Sen submits that while granting leave to the plaintiffs to take
exception to the report of the partition Commissioner, the Division Bench did not
interfere with the decree but simply postponed its enforceability till the time the same
is adjudicated by the Trial Court, but I find that certain observations have been
recorded by another Division Bench on 28th August 2014, which according to the
plaintiffs has virtually set aside the final decree.
The Executing Court is not supposed to travel beyond the scope of a decree
and it is left open to the parties to agitate such point before proper forum.'
Thus it will appear from the observation from the Learned Co-Ordinate Bench
that rights of the parties in a partition suit or dispute whether the decree included all
joint properties are to be decided not by Executing Court but in a different forum.
Although Appeal being 222 of 2014 was disposed in the year 2014 and the
Execution of decree carried out in the year 2017 but till date no appropriate
application is made in terms of liberty granted by Appeal Court to justify that suit is
alive in respect of each of the properties mentioned in the schedules F, G, and H of
the plaint. Thus at present there is no dispute pending before this Court to be
adjudicated.
In the absence of pendency of any dispute/application there is no scope to
entertain any application for substitution.
Thus this application for substitution being GA 29/2025 is dismissed at this
stage in terms of the above observation.
It is however made clear that this Court has not gone into the merits of the
case or rights of the parties.
(BISWAROOP CHOWDHURY, J.)
A.Bhar(P.A)
