JUDGMENT The appellants in this appeal calls in question the judgment and decree passed by the lower appellate Court in S.J.A. No.09/37 of 1993/1989 confirming the judgment and decree passed in O.S. No.62 of 1978. By the said judgments and decrees, the Courts below dismissed the suit of the plaintiffs for declaration that the allotment of share in the homestead plot assigned with no.815 to 818 (four in number) in the final decree passed in O.S. No.40 of 1962 to be not in accordance with the preliminary decree as also based on the report of the Commissioner which suffers from non-consideration of factum of possession of the properties as ordained in the said preliminary decree and as such being unsustainable in the eye of law, are liable to be set aside. 2.The above noted second appeal has been admitted formulating the substantial question of law as raised under ground No.5,7 & 8 which are as under:- “5) Whether the learned Courts below have failed to consider the sale deed (Ext.8) executed by one Josoda in favour of Sugandha in respect of suit lands and when the specific allegation of Sugandha was that one Bhagabat Mohanty husband of Punti and after him Kartika Jena father of defendants no.1 to 5 were looking after her case and fraud has been played by Kartika, the findings of the Courts below that since Sugandha did not claim the same, she can be said to have abandoned her relief and is not entitled to get said properties clearly shows the non-application of judicial mind by both the Courts below and as such the findings are bad in law and are liable to be set aside ? 7) Whether the learned trial Court has gone wrong in not considering the matter as per the direction given by the appellate Court while remanding the matter for fresh adjudication regarding the possession of the parties at the time of final decree proceeding in as much as the findings of the learned Trial Court is unsustainable in the eye of law. And basing on such erroneous finding of the trial Court, the findings assured at by the learned appellate Court is equally unsustainable in law and liable to be set aside ? And basing on such erroneous finding of the trial Court, the findings assured at by the learned appellate Court is equally unsustainable in law and liable to be set aside ? 8) Whether the learned Courts below are and in fact and law is not considering the factum of possession of plaintiff in respect of the properties covered under Ext.. 2 i.e. a sale deed dated 18.05.1940 executed by one Shri Shrihari Jena in favour of Sugandha which should have been allotted to her in the earlier final decree proceeding? 3.In course of hearing of the appeal, one factual aspect surfaced for ascertainment that as to whether the final decree passed in O.S. No.40 of 1962 has in the meantime been executed by any of the parties or not and if so its result. Learned counsel for both sides after taking time for obtaining necessary instruction as regards that matter have finally come up with the answer that said final decree has not further been executed at the instance of any of the party/parties for delivery of possession with respect to their respective allotted properties. In view of above, immediately the question arises that if the final decree which is the subject matter of the subsequent litigation ultimately now being questioned in the second appeal if is no more enforceable then what purpose in reality would it serve by going to adjudicate the sustainability of the judgment and decree passed by the Courts below in the suit where the principal relief is to set aside that final decree although in part for the homestead lands. 4.On being requested by the Court, learned counsel for the parties exhibiting such interest have placed the decision in case of Bimal Kumar and another Vrs. Sakuntala Debi and another; (2012) 3 SCC 548 .The cited case was in relation to partition in the first suit. Final decree in terms of compromise was passed on 03.04.1964. However, subsequent suit was filed in the year 1973 challenging the earlier decree to have been obtained by fraud and further claiming share. The suit being dismissed, appeal was carried which was dismissed for non-prosecution. In the year 2004, the decree passed on 03.04.1964 in the suit of the year 1962 was sought to be executed. So objection was raised on the ground that the law of limitation heavily stands on the way of execution. The suit being dismissed, appeal was carried which was dismissed for non-prosecution. In the year 2004, the decree passed on 03.04.1964 in the suit of the year 1962 was sought to be executed. So objection was raised on the ground that the law of limitation heavily stands on the way of execution. The Court dismissed the execution proceeding as hopelessly barred by limitation. Revision being carried, the Hon’ble High Court placing reliance on a decision in case of Bharati Devi Vrs. Fagu Mahto; AIR 2010 Jharkhand 10, held to the contrary that the execution is not barred by limitation. So the matter was carried to the Hon’ble Apex Court. In that decision, several earlier decisions rendered by the Apex Court have been referred to and considered. The relevant para 20 to 25 are re-produced here in below: “20. In this context, we may usefully refer to Rachakanda Venkat Rao v. R. Satya Bai; (2003) 7 SCC 452 , wherein it has been stated as follows : “19..... The compromise application does not contain any clause regarding the future course of action which gives a clear indication that nothing was left for the future on the question of partition of the joint family properties. The curtain had been finally drawn”. 21. After so stating, the Bench proceeded to observe as follows : (R. Satya Bai case, SCC 464-65, para 22)” 22....The decree as a matter of fact leaves nothing for future. As noticed earlier, in a preliminary decree normally the Court declares the shares of the parties and specifies the properties to be partitioned in the event of there being a dispute about the properties to be partitioned. After declaring the shares of the parties and the properties to be partitioned, the Court appoints a Commissioner to suggest the mode of partition in terms of order 26 Rule 13 CPC. A perusal of Order 26 Rule 13 CPC shows that it comes into operation after a preliminary decree for partition has been passed. In the present case, there was no preliminary decree for partition and, therefore, order 26 Rule 13 does not come into operation. If the plaintiffs considered the decree dated 13.07.1978 as a preliminary decree, why did they wait to move the application for final decree proceedings for 13 years? In the present case, there was no preliminary decree for partition and, therefore, order 26 Rule 13 does not come into operation. If the plaintiffs considered the decree dated 13.07.1978 as a preliminary decree, why did they wait to move the application for final decree proceedings for 13 years? The only answer is that as the plaintiffs knew and they always believed that the 1978 decree was a final decree for partition and it was only passage of time and change in value of the properties which was not up to their expectations that drove the plaintiffs to move such an application”. 24.in Renu Devi v. Mahendra Singh; (2003) 10 SCC 200 , the effect of compromise decree and allotment of shares in pursuance of the said decree was dealt with. The two-Judge Bench referred to Raghubir Sahu v. Ajodhya Sahu and Muzaffar Hussain and opined that the law had been correctly stated in the said authorities. 25.In the said case, after referring to Civil Procedure Code by Mulla, this Court in Renu Devi case, while drawing a distinction between the preliminary and the final decree, has stated that a preliminary decree declares the rights or shares of the parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held and pursuant to the result of further enquiry, a final decree shall be passed. A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parties are finally determined and a decree is passed in accordance with such determination, which is the final decree. Thus, fundamentally, the distinction between preliminary and final decree is that a preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined a decree incorporating such determination needs to be drawn up which is the final decree”. 5.Next considering the provisions of the Article 136 of the Limitation Act 1963 and then referring to several other decisions of the Court, Ex-consequenti, the order of the Executing Court dismissing the execution proceeding having not been levied in time to execute the final decree was restored and that of the revisional Court was set aside. 6.It has been held in case of Chiranjilal Vrs. Hari Das; (2205) 10 SCC 746 that :- “24. A decree in a suit for partition declares the rights of the parties in the immovable properties and divides the shares by metes and bounds .Since a decree in a suit for partition creates rights and liabilities with respect to the immovable properties, it is considered as an instrument liable for the payment of stamp duty under the Stamp Act. Xxxxxxxxx 25.The engrossment of the final decree in a suit for partition would relate back to the date of decree. Xxxxxxxxx 26.The starting period of limitation for execution of a partition decree cannot be made contingent upon the engrossment of the decree on stamp paper.” 7.In the case in hand, the final decree in O.S. No.40 of 1962 has so far not been executed as submitted at the Bar. So, now by resorting to the decision, the parties, even if they are actually in physical possession in deviation to the allotment made in the final decree, the same cannot be set at right by way of execution of the said decree. In essence, the purpose of the present litigation at the behest of the original plaintiff is to set aside the final decree mainly on the ground that their possession with respect to the homestead property has not been duly taken into consideration as ordained in the preliminary decree. The very cause of action for filing the suit is the apprehension of dispossession using the final decree as the weapon. This final decree in view of non-execution in time during the period of its enforceability can no more be so pressed into service to set at right the possession of the parties in accordance with the same. Thus, the apprehension of dispossession giving rise to the cause of action for the suit has since been vanished. This final decree in view of non-execution in time during the period of its enforceability can no more be so pressed into service to set at right the possession of the parties in accordance with the same. Thus, the apprehension of dispossession giving rise to the cause of action for the suit has since been vanished. Therefore, this Court now feels that hearing and disposal of the second appeal on merit in answering the substantial question of law as aforementioned would in reality not serve any useful purpose and it may simply carry some academic interest. Learned counsel for the parties are not in a position to dispute this position. 8.For the aforesaid reasons and discussions, the second appeal stands disposed of holding that at this stage the substantial questions of law formulated for its admission no more survive for being answered. In the peculiar facts and circumstances of this case, no order is passed as to cost. Appeal disposed of.