Himanshu Sekhar Ghorai & Ors vs Smt. Padmabala Rana & Anr on 6 August, 2026

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    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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                                                         2026:CHC-AS:1204
    
    
    
    
         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:-

    SPONSORED

    “….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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    2026:CHC-AS:1204

    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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    2026:CHC-AS:1204

    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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    2026:CHC-AS:1204

    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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    2026:CHC-AS:1204

    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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    2026:CHC-AS:1204

    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.)



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