- (1.) Challenge is to the Order No.s 16 dated May 16, 2005 and 51 dated November 20, 2010 passed by the learned Civil Judge (Senior Division), Asansol in Title Execution Case No.4 of 2004 and Title Execution Case No.5 of 2005 respectively.
(2.) The short fact necessary for the purpose of disposal of this application is that the decree-holders instituted the aforesaid two execution cases for effecting partition of the suit property as per final decree passed in the Title Suit No.36 of 1995. The said suit was decreed in the preliminary form declaring 2/3 rd shares of the plaintiffs and 1/3 rd share of the defendant / opposite party herein in the suit property. As the parties failed to make an amicable partition, a Survey Passed Commissioner was appointed to effect partition according to the preliminary decree. After holding the investigation for partition, in presence of both the parties, he submitted a report which had been made as part of the final decree and accordingly, the final decree for partition was passed in the said suit. The decree-holders filed the Title Execution Case No.4 of 2004 for effecting partition but that case was dismissed on contest holding that the final decree was not executable at all. Subsequently, the decree-holders filed another Title Execution Case No.5 of 2005 and by the order dated November 20, 2010, the learned Executing Court observed that the said execution case was not maintainable and as such, the same was dismissed on contest without costs. Being aggrieved by such orders, this application has been preferred.
(3.) Now, the question is whether the impugned order should be sustained.;