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Judgment
Gautam Kumar Choudhary, J
Heard, learned counsel for the petitioner.
The instant CMP has been filed for quashing of the order dated 09.05.2025 passed by Civil Judge (Sr. Div.), Chandil, in Execution Case No.11/ 2019 whereby and whereunder the Pleader Commissioner has been directed to file a fresh report according to judgment passed by the Court within 15 days and directed the decree holder/ petitioner to amend the final decree.
The facts of the case are not in dispute that the judgment was delivered in Title Partition Suit No.26 of 2013 whereby and whereunder, a preliminary decree was drawn in favour of the present petitioner for getting 1/216th share in the schedule property.
The learned Trial Court appointed Pleader Commissioner for apportionment of share and to draw the final decree and further on the basis of Pleader Commissioner’s report, the final decree was drawn on 03.07.2019.
In the Final decree, in place of 1/216th share, 1/54th share has been shown in the share of the plaintiff which is admittedly not in consonance with the preliminary decree. The final decree was put in for execution in Execution Case No.11/2019 and during the execution proceeding, the defect in final decree was noted by the learned Executing Court and vide the impugned order, the Pleader Commissioner has been appointed to submit its report.
It is submitted by learned counsel for the petitioner that the Executing Court should not have gone behind the final decree for execution of 1/216th share of the petitioner/ plaintiff until and unless the final decree is amended, the Executing Court should not have directed the Pleader Commissioner to submit its report afresh.
It is submitted by learned counsel for the Opp. Parties that the Executing Court is vested with the power under Order XXI Rule 101 CPC with all questions for effecting the right, title and interest for due execution of the decree.
Having considered the submissions advanced, there cannot be any shade of doubt that there was an error in drawing the final decree which is patently not, in consonance with the preliminary decree. The proper course for the Court concerned was to amend the final decree in view of the provisions as contained in Section 152 CPC. Law is settled that it is the duty of the Court to draw final decree which is in consonance with the preliminary decree.
It has been held by the Apex Court in Shub Karan Bubna @ Shub Karan Prasad Bub vs Sita Saran Bubna & Ors. [(2009) 9 SCC 689 that many trial judges tend to believe that adjudication of the right being the judicial function, they should concentrate on that part. Consequently, adequate importance is not given to the final decree proceeding and execution proceedings which are considered to be ministerial functions. In so far as final decree proceedings are concerned, it does not depend upon an application for final decree and the Court does not contemplate filing an application for final decree. Therefore, when a preliminary decree is passed in a Partition Suit, the proceeding should be continued by fixing date for further proceeding till the final decree is passed. The aforesaid ratio has been followed in 2022 SCC OnLine SC 737.
Decree is defined under section 2(2) of the CPC to mean formal expression of an adjudication. It may be preliminary or final, or it may even be partly preliminary or partly final. It is trite law that a preliminary decree should be in conformity with the final decree. The court concerned has power to modify the final decree so that it is in complete agreement with the preliminary decree. There is an inherent power to every court to amend its own decree or order so as to carry out its own meaning. In so doing, it does nothing but exercise a power to correct a mistake, by the ministerial officer by whom the decree was drawn up. Such a power lies under Section 151 r/w Section 152 of the CPC.
Here since the final decree was not as per the preliminary decree, therefore the learned Court was within its right to rectify the same by calling for the pleader commissioner’s report under Section 152 of the CPC. On receiving the same the earlier report of pleader commissioner can be cancelled which is not in tune with the preliminary decree.
Under the circumstance calling for the pleader commissioner’s report afresh does not suffer from any infirmity.
Civil Miscellaneous Petition accordingly stands dismissed. Pending I.A., if any, also stands disposed of.