SOUMEN SEN, J. - (1.) THE petitioners initially filed an application on 2nd September, 2009 under Section 152 read with Order 20 Rules XIV and VI of the Code of Civil Procedure in which a prayer was made for amendment of final decree dated 17th February, 1998.
(2.) THE said application was filed on the ground that the final decree dated 17th February, 1998 is not executable as the pre-emption value of Rs.34,000.00 together with the cost is allowed to be deposited and such value is incorporated in the final decree on the basis of the report filed by the learned Commissioner in this regard. It was contended that the judgment-debtors/stranger purchasers purchased the said family dwelling house property from the proforma defendant Nos.5 and 6 which resulted in a title suit being instituted being Title Suit No.36 of 1985 in the said proceeding, a preliminary decree of pre-emption was passed on 31st August, 1988 which records as follows:- "That the plaintiffs are entitled to a decree for pre-emption under Section 4 of the Partition Act and the defendants are directed to amicably partition the property by metes and bounds according to the share of the plaintiffs within 2 months from the date; failing which partition will be effected by a pleader Commissioner the cost of which is to be borne out by each of the parties." Consequent thereupon, the Commissioner entered reference and filed a report in respect of the part and parcel of the dwelling house being Plot No.3317 mentioning in Khatian No.306 of Mouza, Burdwan with area of .09 acres in holding no.41(old) 27 (new) at D.N. Sarkar Road, (Debendra Nath Sarkar Road) Mohalla, Post Office and Police Station ­ Burdwan (Sadar) District ­ Burdwan, West Bengal. The report of the Commissioner specifically states as follows:- "now for the determination of the valuation of the House copy of four Deeds were submitted before me by a plaintiff side, seen, the copy of the deeds No.8601 of 1976, 8602 of 1976, 8603 of 1976, 8604 of 1974 of Burdwan Sadar, Sub-Registration Office and found that by the same deeds, the defendants purchased the suit property, so, the valuation given there may be taken as the market value of the same. Moreover, by this time the condition of the building has deteriorated much for want of proper care and maintenance."
(3.) THEREAFTER , on consideration of the report of the learned Commissioner, a final decree was passed on 17th February, 1998. The petitioners/decree-holders did not deposit the values of the pre-empted property at the time of institution of the suit and such amount became payable under Order 20 Rule XIV of the Code of Civil Procedure. The final decree is required to mention the said value of the pre-empted property. The final decree was, however, silent on the same and, accordingly, the said final decree became inexecutable. On such plea, the aforesaid application was filed on 2nd September, 2009 for amendment of the decree. In the meantime, the plaintiff filed an execution application being Title Execution Case No.4 of 1995 which, however, became infructuous as the decree remains inexecutable in absence of the mentioning of the pre-emption value required to be deposited by the decree-holder.;