Preliminary decree for partition can not be executed
The final decree proceedings were taken after the passing of the preliminary decree. We are not much concerned regarding the division of the revenue yielding estate and other moveable property. It is an admitted position that a Commissioner was appointed by the Court for effecting the partition of the house. It appears that the Commissioner on giving opportunities to the contesting parties, finalised a Scheme for partition. The report of the Commissioner was put before the Court. Objections were raised to that report by the contesting parties. The Court ultimately passed an order overruling the objections raised by the present petitioner. It is an admitted position prevailing even to-day that the Court has not yet passed the final decree. In spite of this, the advocate appearing for the plaintiff-decree-holder in the trial Court, presented a Regular Darkhast before the Court. The illegality has crept in right from the inception of this Darkhast and it pains tremendously to point out that an advocate has contributed substantially to the final outcome. During the course of this Special Darkhast, the warrant of possession came to be issued by the Court directing the bailiff to put the decree-holder in possession of the ground floor of the house, though in fact there was no decree to that effect. The Court not only issued the warrant, but on the pt her hand granted police help to the decree-holder, so that the possession could be effectively delivered to the decree-holder. With the help of police, the bailiff put the decree-holder in possession of the property and a record was accordingly submitted to the court.
Bombay High Court
Vishwasrao vs Ushabai And Anr. on 11 February, 1987
Equivalent citations: AIR 1988 Bom 392, 1987 (1) BomCR 707
Bench: S Ratnaparkhi
