Judgment : (R.D. Dhanuka, J.) : The Appellant challenges the order of a learned Single Judge dated 27 March 2012 dismissing a notice of motion taken out by the Appellant (the original fourth Defendant) seeking an order and direction against the First Respondent (the plaintiff in the suit) to comply with the consent terms dated 11 February 1958 and a consent decree dated 8 March 1958 and seeking an injunction. 2. On 23 July 1958, Lt. General Shridhar Shamsher Jung Bahadur Rana filed a suit (48 of 1957) against Rajkumar Pitember Shumsher and others for administration of the estate of Maharani Bala Kumari Devi. On 11 February 1958, the parties to the suit filed consent terms. The Original plaintiff was appointed as Receiver without security and renumeration to the estate of the deceased with a power to appoint a Valuer and to distribute the estate of the deceased. Clause 19 of the consent terms provided that the plaintiff as the Receiver be discharged without passing any accounts on his completing the distribution of the estate of the deceased and the contents of two boxes of jewellery. The Fourth Defendant was also entitled to a certain share as per the consent terms. The parties were granted liberty to apply. On 11 February 1958, this Court drew a preliminary decree in terms of the consent terms dated 11 February 1958. 3. On 24 August 1979, on the demise of the original plaintiff, the original plaintiff was substituted by his heir and representative namely Lt. General Shridhar Shum Sher Jung Bahadur Rana. 4. On 7 December 2010, Fourth Defendant took out a notice of motion (3537 of 2010) seeking an order and direction against the First Respondent to comply with the consent terms dated 11 February 1958 and the preliminary consent decree dated 8 March 1958 and also sought an injunction. The First Respondent filed an affidavit in reply opposing the reliefs claimed in the Notice of Motion. In Para 4 of the affidavit, it was stated that the preliminary decree was passed on 8 March 1958. It was further stated that to the best of his knowledge, the consent terms and consent decree had been complied with. The First Respondent filed an affidavit in reply opposing the reliefs claimed in the Notice of Motion. In Para 4 of the affidavit, it was stated that the preliminary decree was passed on 8 March 1958. It was further stated that to the best of his knowledge, the consent terms and consent decree had been complied with. By an order dated 14 February 2011, the learned Single Judge dismissed the Notice of Motion (3537 of 2010) taken out by the Fourth Defendant on the ground that the application for execution of the consent terms was filed after twelve years of the filing of the consent terms and was thus barred by the law of limitation. It was observed that the suit itself was disposed of. 5. By an order dated 22 June 2011, passed by a Division Bench, the order dated 14 February 2011 passed by the learned Single Judge was set aside. In Para 2 of the order, the Division Bench held as follows: “2. The reasons given by the learned Single Judge for rejecting the Notice of Motion are totally unacceptable and suffer from non application of mind to law and facts. The suit is for partition in which a preliminary decree has been passed by consent of the parties. The Notice of Motion is taken out in a pending suit, therefore, there is no question of the relief sought by the Notice of Motion being time barred. The appeal, is, therefore, allowed. The order impugned is set aside. The Notice of Motion is remitted back to the learned Single Judge for de novo consideration and decision in accordance with law.” 6. By an order dated 27 March 2012, the learned Single Judge once again held that the decree dated 8 March 1958 was a final decree and not a preliminary decree. In Paras 18 and 19 of the order, the learned Single Judge further observed as under: “18. The plaintiff does not contend that the application does not lie. The Plaintiff contends that as per terms of the consent terms he distributed the estate and has stood discharged. The Plaintiff as the Receiver, shall, therefore, have to submit a report of compliance to the Court. 19. The plaintiff does not contend that the application does not lie. The Plaintiff contends that as per terms of the consent terms he distributed the estate and has stood discharged. The Plaintiff as the Receiver, shall, therefore, have to submit a report of compliance to the Court. 19. The Plaintiff, however, cannot be directed to comply with the consent terms in this Notice of Motion taken out 55 years after the consent terms was entered into and the consent decree was passed. The Plaintiff cannot also be injuncted from transferring any of the estate of the deceased.” 7. The learned Single Judge directed the plaintiff, as the Receiver, to file his report along with receipts of distribution of assets as per the consent terms dated 11 February 1958 to this court with a copy to the advocate for the Fourth Defendant. Save and except the said direction, the Notice of Motion was dismissed. 8. The learned counsel appearing on behalf of the appellant made the following submissions : (1) The impugned order passed by the learned Single Judge holding that the decree dated 8 March 1958 was a final decree and not a preliminary decree is in the teeth of the order dated 22 June 2011 passed by the Division Bench in Appeal (L) No. 146 of 2011; (2) The learned counsel placed reliance on the judgments of the Supreme Court in AmalKumar Ghosh & Ors. Vs. Basanta Kumar Almal (2010) 11 SCC 78 )and Shub Karan Bubna alias Shub Karan Prasad Bubna (2010 (2) AWC 1325 (SC).It is submitted that unless and until the Receiver had distributed the estate as per the provisions of the consent terms, he is not automatically discharged. The Receiver in this case had not taken any steps for distributing the estate to the beneficiaries. 9. The learned counsel appearing on behalf of the First Respondent submitted that to the best of the knowledge of the First Respondent, the Notice of Motion was taken out after fifty five years by the Fourth Defendant and in any event after twenty one years of the First Respondent being appointed as a receiver of the estate of the deceased in substitution of his father. The Fourth Respondent failed to show from the pleadings as to how the First Respondent has failed to discharge his obligation in distributing the estate of the deceased. The Fourth Respondent failed to show from the pleadings as to how the First Respondent has failed to discharge his obligation in distributing the estate of the deceased. It is submitted that to the best of the knowledge of the First Respondent, he had already complied with the consent terms and consent decree. The learned counsel, however, could not deny that the decree passed on 8 March 1958 was a preliminary decree. 10. From the perusal of the impugned order passed by the learned Single Judge and the order dated 22 June 2011 passed in Appeal (L) No. 146 of 2011 by the Division Bench, it is clear that the impugned order dated 27 March 2012 holding that the decree was a final decree and not a preliminary decree is clearly contrary to the order dated 22 June 2011 passed by the Division Bench. In the order dated 22 June 2011, the Division Bench had also observed that the Notice of Motion was taken out by the Fourth Defendant in the pending suit and therefore, there was no question of the relief sought by the Fourth Defendant in the Notice of Motion being time barred. It is common ground that the First Respondent has not challenged the order dated 22 June 2011 passed by the Division Bench. In our view, the impugned finding of the learned Single Judge that the decree passed by this Court was a final decree and not a preliminary decree, is not only contrary to the order passed by the Division Bench on 22 June 2011, but is also contrary to the admission of the First Respondent in para 4 of the affidavit in reply dated 25 January 2012. Both the parties were ad idem that the decree passed on 8 March 1958 was a preliminary decree and not a final decree. We are, therefore, of the opinion that this finding of the learned Single Judge is incorrect. 11. It is true that the appellant has not explained the delay in taking out the Notice of Motion for seeking compliance with the consent terms and decree. We are, therefore, of the opinion that this finding of the learned Single Judge is incorrect. 11. It is true that the appellant has not explained the delay in taking out the Notice of Motion for seeking compliance with the consent terms and decree. Be that as it may, in view of the direction given by the learned Single Judge to the First Respondent to file his report along with receipts of distribution of the estate as per the consent terms dated 11 February 1958 in this Court, in our view, the rights of the appellant are protected. This part of the order has not been challenged by the First Respondent. 12. We therefore, pass the following order: (1) The finding of the learned Single Judge that the decree dated 8 March 1958 is a final decree is held to be erroneous. The Division Bench in its order dated 22 June 2011 held that the decree dated 8 March 1958 was a preliminary decree. That finding has not been disturbed in appeal. The First Respondent, who was appointed as Receiver, has not been discharged. (2) The appellant shall have liberty to file appropriate proceedings in the event that he is aggrieved by the report along with the receipts of the distribution of the estate filed by the First Respondent in compliance with the impugned order of learned Single Judge. (3) The appeal is accordingly disposed of in the aforesaid terms. (4) There shall be no order as to costs.