JUDGMENT : Z.A. Haq, J. Heard. 2. Rule. Rule made returnable forthwith. 3. By the impugned order, the executing Court has dismissed the application (Exh. 20) filed by the decree holder praying that a Court Commissioner be appointed to effect partition of her 3/7th share in the suit / house property, open land and movable property. Consequential order is passed on M.J.C. No. 06/2008 disposing the proceedings. The application (Exh. 20) is dismissed on the ground that similar application was filed earlier by the decree holder, however, when the precept was sent as per Section 54 of the Code of Civil Procedure to partition the agricultural land, the decree holder had not pressed that application which contained the prayer for appointment of the Commissioner to partition the house property and movable property also. The executing Court has further recorded that the preliminary decree was passed on 16/03/1993 and M.J.C. No. 06/2008 came to be filed after almost 15 years, and therefore it was barred by limitation. 4. The learned advocate for the respondent nos. 1 to 3 has supported the impugned order relying on the judgment given in the case of Ratansingh vs. Vijaysingh and others, (2001) 1 SCC 469 , the judgment given in the case of Dr. Chiranji Lal (D) by L.Rs vs. Hari Das (D) by L.Rs., (2005) AIR SC 2564 and the judgment given in the case of Ram Bachan Rai & Ors. vs. Ram Udar Rai & Ors., (2006) AIR SC 2248 , in which it is held that the decree becomes inexecutable after the period prescribed under Article 136 of the Limitation Act, 1963 (for short "the Act of 1963") expires. 5. The learned advocate for the petitioner - Decree holder submitted that the impugned order is illegal and unsustainable and is passed under the mis-conception that the final decree proceedings are also governed by Article 136 of the Act of 1963. Referring to the judgment given in the case of Shub Karan Bubna Alias Shub Karan Prasad Bubna vs. Sita Saran Bubna and others, (2009) 9 SCC 689 , it is argued that the executing Court is duty bound to draw the final decree and the civil suit is not disposed till the final decree is drawn. 6. Referring to the judgment given in the case of Shub Karan Bubna Alias Shub Karan Prasad Bubna vs. Sita Saran Bubna and others, (2009) 9 SCC 689 , it is argued that the executing Court is duty bound to draw the final decree and the civil suit is not disposed till the final decree is drawn. 6. The point which arises for consideration in the present matter has been dealt with in the judgment given in the case of Shub Karan Bubna (supra). The Hon'ble Supreme Court, after discussing the law on the point, has held that an application requesting the Court to take necessary steps to draw a final decree for effecting partition / division in terms of the preliminary decree cannot be said to be an application for execution, governed by Article 136 of the Act of 1963 nor it can be said to be an application for fresh relief governed by Article 136 of the Act of 1963. It is laid down that such application requesting the Court to draw the final decree is only a reminder to the Court to do its duty to appoint a Commissioner, get report from him and draw a final decree in the pending suit so that the civil suit is taken to its logical conclusion. Considering the proposition laid down in the judgment given in the case of Shub Karan Bubna (supra), the conclusions of the executing Court that Commissioner can be appointed as requested by the decree holder as per the application (Exh. 20), cannot be sustained. 7. The judgments relied upon by the learned advocate for the respondent nos. 1 to 3 do not assist the respondents as the judgments are delivered in the cases where the execution proceedings were filed after the prescribed period of limitation expired from the date of drawing of the final decree. 8. As far as the other ground on which the application (Exh. 20) is rejected, that the earlier application filed by the decree holder was not pressed is also not in consonance with the facts and the legal position. By the earlier application, the decree holder had prayed for appointment of the Commissioner to carve out her share as per the preliminary decree and on reference of the matter under Section 54 of the Code of Civil Procedure to the Collector, the application was not pressed. By the earlier application, the decree holder had prayed for appointment of the Commissioner to carve out her share as per the preliminary decree and on reference of the matter under Section 54 of the Code of Civil Procedure to the Collector, the application was not pressed. Apparently, the earlier application was not pressed by the advocate representing the decree holder due to inadvertent mistake. The application (Exh. 20) came to be filed on the same day on which the earlier application was not pressed. The decree holder has given the explanation that as by the earlier application, prayer was made to appoint a Commissioner to carve out the share of the decree holder in the agricultural land, house property and movable property, and the matter was referred to the Collector as per Section 54 of the Code of Civil Procedure for carving out the share of the decree holder in the agricultural land, the earlier application was not pressed and on the same day, the application praying for appointment of Commissioner to carve out the share of the Decree holder in the house property and movable property came to be filed. The explanation given by the petitioner - decree holder is required to be accepted in the facts of the case. 9. In view of the above, I find that the trial Court has committed error of jurisdiction by dismissing the application (Exh. 20) and disposing the execution proceedings i.e. M.J.C. No. 06/2008. 10. Hence, the following order is passed:- ORDER (a) The impugned order passed on the application (Exh. 20) on 20/02/2017 is set aside and the consequential order dismissing M.J.C. No. 06/2008 is also set aside. (b) M.J.C. No. 06/2008 is restored on the file of the Civil Judge, Junior Division, Brahmapuri. (c) The application (Exh. 20) filed by the petitioner - decree holder is allowed. (d) The executing Court shall appoint Commissioner to effect partition as per the preliminary decree. Steps in the matter shall be taken by the executing Court within 2 months from today. Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.