Jharkhand High Court
Rizwanaul Haque vs Md. Ekramul Haque on 10 October, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:31432
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 521 of 2025
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Rizwanaul Haque, son of Late Haji Md. Mian Jaan, resident of Ward No.2 of
Madhupur Municipality, P.O. & P.S. Madhupur, District Deoghar,
Jharkhand .... .... .... Petitioner
Versus
1. Md. Ekramul Haque, son of Late Haji Md. Mian Jaan, resident of
Ward No.II of Madhupur Municipality, P.O. & P.S. Madhupur, District
Deoghar, Jharkhand
2. Rubila Khatoon, daughter of Haji Md. Mian Jaan, wife of Abdul
Rashid, resident of Village Koath, P.O. & P.S. Dwat, District Rohtas, Bihar
3. Sakila Khatoon, daughter of Haji Md. Mian Jaan, wife of Warish
Hassan, resident of Churi Mahal Kasai Mohalla Road, P.O. Giridih, P.S.
Giridih, Sule Division and District Giridih
4. Jarina Kausar, wife of Md. Moin, daughter of Haji Md. Mian Jaan,
resident of Kalki Road, Gandhi Path, P.O., P.S. & District Saharsa, Bihar
5. Ishrat Jahan, wife of Md. Khurshid, daughter of Haji Md. Mian Jaan,
resident of Ward No.II of Madhupur Municipality, P.O. & P.S.
Madhupur, District Deoghar, Jharkhand
.... .... .... Opposite Parties
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Petitioner : Mr. Neil Abhijit Toppo, Advocate
For the O.P. No.1 : Mr. Onkar Nath Tiwary, Advocate
Mr. Shamaiel Raza, Advocate
For O.P. Nos.3 & 5 : Mr. Manjul Prasad, Sr. Advocate
Mr. Akhouri Prakhar Sinha, Advocate
Mr. Aman Kedia, Advocate
Order No.03 / Dated : 10.10.2025
Instant civil miscellaneous petition has been filed by the judgment
debtor for quashing the order dated 03.04.2025 passed in Civil Appeal
No.134 of 2024, whereby and whereunder the prayer for stay of preparation
of final decree pursuant to the judgment and decree passed in Original Suit
No.152 of 2006 has been rejected.
2. The main ground on which the stay petition was filed on behalf of
the petitioner before the first appellate court is that Survey Knowing Pleader
Commissioner was appointed by the learned trial court for preparing final
decree without giving notice to the present petitioner and in the light of the
said order, Amin Commissioner gave notice to defendant no.2/petitioner
and directed all the parties to appear for measurement and division on
06.03.2025. It was also pleaded that defendants have separate houses,
2025:JHHC:31432
whereas petitioner has no separate house.
3. Learned first appellate court rejected the petition inter alia on the
ground that after preliminary decree, the proceeding of final decree has to
be initiated and the trial court has followed the said Rule. The allegation
that Survey Knowing Pleader Commissioner had obtained signature of the
appellant on a blank order sheet, was not substantiated by any evidence.
4. It is argued by the learned counsel that since notices were not
issued on the Pleader Commissioner, therefore, final decree proceeding
could seriously prejudice the judgment debtor / petitioner.
5. Having considered the submissions advanced on behalf of
petitioner, I find no ground to interfere with the impugned order for the
following reasons:
Firstly, from the impugned order, it appears that the signature of the
petitioner was taken by the Pleader Commissioner, therefore, to state that
no notice was issued, is without any factual basis.
Secondly, learned first appellate court is absolutely right in stating that
the final decree proceedings are natural sequel to the preliminary decree.
Mere filing an appeal does not operate as a stay of the proceedings before
the trial court, for preparation of final decree. It has been held by the Apex
Court in Kattukandi Edathil Krishnan Vs Kattu Kandi Edathil Valsan, 2022
SCC OnLine SC 737
35. We are of the view that once a preliminary decree is passed by the Trial
Court, the court should proceed with the case for drawing up the final
decree suo motu. After passing of the preliminary decree, the Trial Court
has to list the matter for taking steps under Order XX Rule 18 of the CPC.
The courts should not adjourn the matter sine die, as has been done in the
instant case. There is also no need to file a separate final decree proceedings.
In the same suit, the court should allow the concerned party to file an
appropriate application for drawing up the final decree. Needless to state
that the suit comes to an end only when a final decree is drawn. Therefore,
we direct the Trial Courts to list the matter for taking steps under Order
XX Rule 18 of the CPC soon after passing of the preliminary decree for
partition and separate possession of the property, suo motu and without
requiring initiation of any separate proceedings.
Thirdly, so far, the stay that can be ordered under Order XLI Rule 5 of the
CPC is concerned, it can be passed when the appellant is able to
demonstrate that some error and infirmity in the impugned judgment, and
not on the ground that the trial court is proceeding ahead with the
2025:JHHC:31432
preparation of final decree.
6. Under the circumstance, this Court is of the view that the instant
petition is without any merit and is filed to delay the adjudicatory process.
Civil Miscellaneous Petition is dismissed with cost. Cost assessed to
Rs.10,000/-. Pending Interlocutory Application, if any, is disposed of.
(Gautam Kumar Choudhary, J.)
Anit
Uploaded
14.10.2025
