Calcutta High Court (Appellete Side)
Himanshu Sekhar Ghorai & Ors vs Smt. Padmabala Rana & Anr on 6 August, 2026
2026:CHC-AS:1204
SL 2 06.08.2026
Court No.39
(PA)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
C.O. NO. 1023 OF 2025
Anil Kumar Garai (since deceased)
Himanshu Sekhar Ghorai & Ors.
-Vs.-
Smt. Padmabala Rana & Anr.
Mr. Sounak Bhattacharya, Adv.
Mr. Sounak Mondal, Adv.
Mr. Abhirup Halder, Adv.
Ms. Bipasha Bhattacharyya, Adv.
...for the petitioners
1. This Revisional application has been filed at the
behest of defendant no. 1 - Anil Kumar Garai.
During the pendency of this Revisional
application, he expired; as such, the other
defendants were substituted as his legal heirs
and representatives, i.e., the present petitioners
herein.
2. By filing the present Revisional application
under Article 227 of the Constitution of India,
the petitioners challenged the order being No.
110 dated 08.11.2024 and order being No. 111
dated 31.01.2025 passed by the Learned Civil
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Judge (Junior Division), Additional Court at
Tamluk, District: Purba Medinipur in Title Suit
No. 1 of 2018. It was alleged that the Learned
Trial Judge acted illegally in rejecting the
applications filed by the petitioners on the
ground that the court has become functus
officio in the disposal of the said suit and
cannot pass any orders thereon.
3. The brief facts are essential for the purpose of
disposal of this instant Revisional application,
are that the plaintiff/opposite party filed a title
suit being Title Suit No. 1/2018 (New)/Title Suit
No. 111/1978 (old) against the defendants, inter
alia, praying for declaration, permanent
injunction and also for pre-emption under
Section 4 of the Partition Act, 1893 in respect of
the 'Ka' Schedule Property mentioned in the
suit. The said suit was decreed on 25.01.1983
in favour of the plaintiff on contest and against
the defendant no. 1. The learned trial court
decreed the aforesaid title suit, inter alia, as
follows:-
"that the suit be and the same is decreed
on contest with cost in preliminary form.
'Ka' schedule of land in the plaint is
hereby decreed as part and parcel of
undivided family dwelling house. The
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plaintiff is entitled to pre-empt 'Ka'
schedule of property purchased by the
defendant no. 1 who is a stranger
purchaser to the plaintiff's family. The
plaintiff is permitted to purchase that
property from the defendant no. 1 at a
price to be mutually agreed upon in
between them and to obtain Kobala deed
within 2 (Two) months from this date
failing which the plaintiff will be at liberty
to apply to the court for ascertaining
market price of the property on
appointment of a commissioner. The
plaintiff will have the property
transferred to him on depositing the
consideration money in the court. The
defendant no. 1 is permanently
restrained from disturbing the peaceful
possession of the property by the
plaintiff."
4. Being aggrieved by and dissatisfied with the
said decree passed by the learned trial Court in
aforesaid title suit, the defendant no. 1
preferred an appeal before the 3rd Court of Sub-
ordinate Judge, Midnapore being Title Appeal
No. 114 of 1983. Upon hearing the parties, the
learned Appellate Court allowed the said appeal
on contest, and the Title Suit No. 111 of 1978
was dismissed on contest with cost.
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5. The said judgment and order passed in Title
Appeal was challenged before the Hon'ble High
Court in a second appeal. Upon hearing the
parties, the Hon'ble High Court allowed the
second appeal and set aside the judgment and
order passed by the learned Appellate Court
and affirmed the judgment and decree passed
by the learned Trial Court. The verbal prayer of
the learned counsel for the respondent, for stay
of operation of the said judgment, was rejected
on 14th June, 1989 as, inter alia, as under:-
“….In the result, the appeal is allowed.
The judgment and decree appealed
against are set aside and the judgment
and decree of the learned Munsif are
restored.
Verbal prayer of the learned counsel for
the Respondent for stay of operation of
this judgment is refused.”
6. Even after the Hon’ble High Court affirming the
order of the learned Trial Court, the plaintiff did
not take any steps to execute the said decree in
final form. As such, the petitioners filed an
application before the learned Trial Court
praying for dismissal of the entire suit for non-
compliance of the Hon’ble Court’s order. The
learned Trial Court rejected the same.
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Subsequently, the petitioners filed a further
petition, which was also rejected. Hence, this
Revisional application.
7. Having heard the submission of the learned
counsel appearing on behalf of the petitioners
and on perusal of the record, it appears that the
aforesaid title suit was filed for declaration,
permanent injunction and pre-emption under
Section 4 of the Partition Act, 1893 in respect of
the ‘Ka’ schedule property and the same was
decreed in favour of the plaintiff and ultimately,
it was travelled up to the Hon’ble High Court
but the same was affirmed by the Hon’ble High
Court.
8. The learned Trial Court has permitted the
plaintiff to purchase the property involved in
the title suit from the defendant no. 1 at a price
to be mutually agreed upon by them and to
obtain Kobala deed within 2 (two) months from
date, failing which the plaintiff would be at
liberty to apply to the court for ascertaining the
market price of the property on appointment of
a commissioner and the plaintiff would have the
property transferred to him on depositing the
consideration money in the court. Despite
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affirmation of the High Court, the plaintiff did
not take any steps for execution of the same.
9. It was submitted by the learned counsel
appearing on behalf of the petitioners that the
decree was in preliminary form and that cannot
be sustained in law if the plaintiff did not pray
for final decree. Accordingly, the said
preliminary decree ought to be dismissed for
non-compliance of the Hon’ble High Court’s
order.
10. It was further submitted that the petitioner had
filed an application for recalling of the
impugned order dated 08.11.2024 on the
ground stated therein, but the same was also
rejected vide order dated 31st January, 2025
only on the ground that the learned trial court
became functus officio after passing the decree.
Therefore, the same should be set aside.
11. It would be apposite here to consider the settled
legal position regarding the nature of a
preliminary decree and the consequence of a
decree-holder not taking steps for a final
decree.
12. Order 20 Rule 18 read with Section 2(2) of the
Code of Civil Procedure, 1908 contemplates a
two-stage process in suits of the present
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nature, i.e. a preliminary decree declaring the
rights of the parties, followed by a final decree
giving effect to those rights. Section 2(2)
expressly includes both preliminary and final
decrees within the definition of “decree,” and it
is well settled that a suit in which only a
preliminary decree has been passed does not
thereby stand disposed of or terminated; it
continues to remain pending on the file of the
court until an effective final decree is drawn up.
13. This precise question, whether an application
for a final decree is governed by any period of
limitation, fell for consideration before the
Hon’ble Supreme Court in Shub Karan Bubna
v. Sita Saran Bubna & Ors.1. In that case,
more than a decade had elapsed between
dismissal of the defendants’ appeal against the
preliminary decree and the plaintiff’s
application for a final decree, and it was
contended that such an application, being one
made in exercise of a right accruing on the date
of the preliminary decree, was governed by the
residuary Article 137 of the Limitation Act,
1963, and was liable to be rejected as time-
barred. The Hon’ble Supreme Court rejected
1
(2009) 9 SCC 689
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this contention and held that since the
declaration of shares is only the first stage of a
partition suit, the passing of a preliminary
decree does not dispose of the suit, which
continues to remain pending until an actual
division is effected by a final decree. It was
further held that an application requesting the
court to take steps towards drawing up a final
decree in terms of the preliminary decree is
neither an application for execution under
Article 136, nor an application for a fresh relief
under Article 137 of the Limitation Act. It is, in
substance, no more than a reminder to the
court to perform its own continuing duty in the
pending suit, a duty whose performance does
not, in the first place, require any such
reminder from the litigant.
14. Therefore, the preliminary decree passed by the
learned Trial Court, having been affirmed by the
Hon’ble High Court in the second appeal, did
not stand exhausted or terminated for want of a
final decree. The suit continued to remain
pending, awaiting appropriate steps by the
plaintiff/decree-holder for a final decree. The
initiation of such proceedings lies within the
discretion of the decree-holder, and the Code
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prescribes no period within which they must be
taken so long as the suit itself has not
culminated into, and been given full effect by,
an executed final decree. It is upon the plaintiff
to execute the decree, and it is entirely the
prerogative and desire of the plaintiff; the court
cannot compel a decree-holder to execute the
decree before the Court. Once the preliminary
decree stood affirmed by the Hon’ble High
Court, it could not be dismissed merely on the
ground of the plaintiff’s non-compliance or
inaction in initiating final decree proceedings,
and the prayer for such dismissal is not tenable
in law even where the plaintiff has, till date, not
proceeded with execution.
15. Accordingly, the Revisional application is devoid
of merit.
16. Accordingly, C.O. No. 1023 of 2025 is, thus,
dismissed without order as to costs. Connected
applications, if any, are also, thus, disposed of.
17. Let a copy of this Order be sent to the Learned
Courts below for information.
18. Interim order, if any, stands vacated.
19. All parties will act on the server copies of this
Order uploaded on the official website of this
Hon’ble High Court.
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20. Urgent photostat certified copy of this Order, if
applied for, is to be given as expeditiously to the
parties on compliance of all legal and necessary
formalities.
(Ajay Kumar Gupta, J.)
