Rajasthan High Court - Jodhpur
Mst. Umrao Devi Alias Uma vs Lrs Of Krishna Devi (2025:Rj-Jd:46675) on 29 October, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:46675]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 584/2025
1. Mst. Umrao Devi Alias Uma D/o Shri Manakchand Surana,
Aged About 67 Years, W/o Ummed Singh Nahata R/o
Bhadra, Distt. Hanumangarh. At Present C/o Pushpanjali
Complex, Iv Floor, Near Rajeev Bhawan, Guwahati
(Assam).
2. Abhinandan S/o Ummed Singh, Aged About 45 Years, At
Present C/o Pushpanjali Complex, Iv Floor, Near Rajeev
Bhawan, Guwahati (Assam).
----Appellants
Versus
1. Lrs Of Krishna Devi, Bhadra, Tehsil Bhadra, District
Hanumangarh
2. Amit S/o Krishna Devi, Bhadra, Tehsil Bhadra, Distt.
Hanumangarh.
3. Rajnish S/o Krishna Devi, Bhadra, Tehsil Bhadra, Distt.
Hanumangarh.
4. Alka D/o Krishna Devi, Bhadra, Tehsil Bhadra, Distt.
Hanumangarh.
5. Sukhmala D/o Krishna Devi, Bhadra, Tehsil Bhadra, Distt.
Hanumangarh.
6. Kanwalsingh S/o Champalal, Bhadra, Tehsil Bhadra, Distt.
Hanumangarh.
7. Rajnish S/o Kanwalsingh, Ward No. 18, Bhadra, Tehsil-
Bhadra, District- Hanumangarh.
----Respondents
For Appellant(s) : Mr. Sohan Lal Jain
For Respondent(s) : Mr. Arvind Samdariya
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
29/10/2025
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1. By way of the present first appeal, the appellants have
assailed the final decree dated 14.05.2025 passed by the learned
Additional District Judge, Bhadra, District Hanumangarh in
Execution Case No. 20/2020, as well as the order dated
07.05.2025, whereby the objections raised by the appellants
against the Commissioner's report, submitted during the pendency
of the execution proceedings, were rejected.
2. The case set up by the appellants is that the respondents-
plaintiffs instituted a suit for partition of a house situated in Ward
No. 2 (old), presently Ward No. 4, Bhadra, admeasuring 60 x 50
ft., which had been jointly purchased by the parties on
15.03.1991. The learned trial Court, vide judgment and decree
dated 15.07.2019, passed a preliminary decree declaring that
each of the plaintiffs and defendants was entitled to ½ share in
the disputed property.
3. It is submitted that before a final decree was drawn by the
trial Court, the respondents-plaintiffs filed an execution petition
on the strength of the said preliminary decree dated 15.07.2019.
During the pendency of the execution proceedings, the learned
executing Court, on an application filed by the respondents-
plaintiffs, appointed a Commissioner to prepare a report. Upon
receipt of the Commissioner's report, the executing Court
proceeded to draw the final decree and directed delivery of
possession of the property to the respondents-plaintiffs within
three days from the date of passing of the decree.
4. Learned counsel appearing for the respondents-plaintiffs was
not in a position to dispute the settled legal position that a
preliminary decree is not executable in law, as it merely declares
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the rights and liabilities of the parties and requires further
proceedings before it can become executable. The rights declared
under a preliminary decree are required to be crystallized by way
of a final decree, and it is only such final decree which can be put
to execution.
5. The Hon'ble Supreme Court, in "Renu Devi v. Mahendra
Singh", (2003) 10 SCC 200, has categorically held that in a
partition suit, unless the property is divided by metes and bounds
and specific shares are allotted to the parties, execution cannot
proceed merely on the basis of a preliminary decree.
6. After hearing learned counsel for the parties and perusing
the record, this Court finds that the respondents-plaintiffs, after
passing of the preliminary decree, instituted execution
proceedings without first approaching the competent civil Court for
drawing up of the final decree. As per the provisions of the Code
of Civil Procedure, a preliminary decree cannot be executed until
the final decree is duly drawn after following the prescribed
procedure.
7. In view thereof, the action of the executing Court in calling
for the Commissioner's report and thereafter proceeding to draw
and pass a final decree is found to be illegal and unsustainable in
law.
8. Consequently, the present Civil First Appeal is allowed. The
order dated 07.05.2025 and final decree dated 14.05.2025 passed
by the learned Additional District Judge, Bhadra in Execution Case
No. 20/2020, along with all consequential proceedings, are
quashed and set aside.
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9. However, the respondents-plaintiffs shall be at liberty to
approach the competent civil Court/appropriate forum for drawing
the final decree in accordance with law, based on the preliminary
decree dated 15.07.2019. In the event such an application is filed
within a period of one month from today, the entire proceedings
for drawing the final decree shall be concluded by the competent
civil Court/appropriate forum within a period of eight months
thereafter.
10. The stay petition stands disposed of accordingly.
(KULDEEP MATHUR),J
7-divya/-
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