Akbarsaheb Amirsaheb Kokani Since Decd. Thr. Lrs Jilani A. Kokani vs Akbarsaheb Amirsaheb Kokani Since Decd. Thr. Lhrs And Ors
- Court
- Bombay High Court
CNR No : HCBM010223462026
-WP7588-2026+.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7588 OF 2026
Akbarsaheb Amirsaheb Kokani (since
deceased) Through LR Jilani Akbar Kokani ...Petitioner
Versus
Akbarsaheb Amirsaheb Kokani (since
deceased) Through LR Aslam Akbar Kokani …Respondent
SANTOSH
SUBHASH
KULKARNI
WITH
WRIT PETITION NO. 7589 OF 2026
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2026.08.04
20:44:36 +0530
Akbarsaheb Amirsaheb Kokani (Since
Deceased) Through LR Jilani A Kokani ...Petitioner
Versus
Akbarsaheb Amirsaheb Kokani (since
deceased) Through LR Aslam Akbar Kokani …Respondent
Mr. Rafiq Dada, Senior Advocate, a/w Alankar Kirpekar, Ayush
Tiwari and Shantanu Chandratre, i/b Shantanu
Chandratre, for the Petitioner in WP/7588/2026.
Mr. Alankar Kirpekar, a/w Ayush Tiwari and Shantanu
Chandratre, i/b Shantanu Chandratre, for the Petitioner
in WP/7589/2026.
Mr. Pralhad Paranjape, a/w Rahul Punjabi, Shweta More and
Ishan Shroff, for Respondent Nos. 1.1 and 1.2 in both
Petitions.
Mr. Sanjay P. Shinde, for Respondent Nos. 14A and 14B.
Mr. Rishi Soni, a/w Sujay Gawade, Mudita Pawar, i/b Shree
and Co, for Respondent Nos. 24 to 30.
Mr. Rupesh Geete, a/w Avesh Ganja, i/b Satyaki Law
Associates, for Respondent Nos. 31 to 33.
Mr. R. M. Haridas, a/w Pratik Rahade, for Respondent Nos. 34
to 37, 39 to 41 and 43.
Mr. R. D. Soni, for Respondent No. 42.
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CORAM: N. J. JAMADAR, J.
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RESERVED ON: 29 JULY, 2026
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PRONOUNCED ON: 4 AUGUST, 2026
JUDGMENT:-
1. Rule. Rule made returnable forthwith and, with the
consent of the learned Counsel for the parties, heard finally.
2. The challenge in these petitions is to a common order
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dated 20 April, 2026 passed by the Executing Court in Regular
Darkhast No. 23 of 1981, whereby the applications filed by the
legal representative of the decree holder, to recall an earlier
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order dated 21 January, 2023 and restrain the parties from
entering into and carrying out any construction activity on the
suit premises till the partition is effected by the Collector,
Nashik, came to be rejected on the premise that after sending
the precept for execution, the Executing Court became functus
officio .
3. Though the litigation has a chequered history, with
multiple rounds of proceedings spanning over almost 60 years,
yet, in the backdrop of the limited nature of the controversy, this
Court considers it appropriate to summarise the bare minimum
facts that are required to be noted for the determination of these
petitions as under:
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3.1 Akbarsaheb Kokani, the father of the petitioner, instituted
a suit bearing RCS No. 102 of 1963, seeking administration of
the estate of his father, Amirsaheb, and uncle,
Mohammadsaheb. The said suit came to be decreed by the
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judgment and decree dated 29 August 1968. The petitioner
claims that, the late plaintiff Akbarsaheb became entitled to
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7/80 share in the house properties, 7/80 share in the
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agricultural lands, and 7/40 share in the compensation
received in respect of the acquired land. With the further
developments in the intervening period, post the filing of the
execution proceedings, the petitioner claims the decree holder’s
th th
share in the property increased from 7/80 to 7/40 in the
agricultural lands.
3.2 With the passage of time, third-party rights were created
by the persons who claimed to have a share in the suit property
in favour of various parties. There were successive transfers as
well.
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3.3 On 5 May 2001, the Executing Court had sent a precept
to the Collector, Nashik, for effecting partition of the land
assessed to revenue. The said proceeding before the Collector
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has not attained finality. By an order dated 31 January, 2023,
the Executing Court directed the Collector to execute the
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precept in accordance with the determination in the said order
in regard to the rights of the parties, and the Collector was
directed to effect the partition.
3.4 The said order was challenged in Writ Petition No. 5741 of
2023. The said petition came to be disposed with the
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clarification that the order dated 31 January, 2023 does not
determine the substantive rights of the parties, and the parties
shall be at liberty to agitate the same in the appropriate
forum/Court as available to them. The Collector, Nashik, was
also directed to give hearing to all concerned parties and
thereafter undertake the exercise of effecting partition strictly in
accordance with the preliminary decree and the law, within a
period of three months from the date of issuance of notice to all
parties.
3.5 It is common ground that the Collector, Nashik, has yet
not effected the partition. In the meanwhile, the petitioner –
legal representative of the decree holder, filed an application
before the Executing Court to recall the aforesaid order dated
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31 January, 2023, only to the extent of reopening the matter
for passing necessary restraint orders, and granting a
temporary injunction, thereby restraining the parties, their
agents and assignees from entering into and carrying out any
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construction activity over the suit premises till the Collector
effects the partition, and also directing the local police to remove
the men and machinery from the suit premises.
3.6 The application was resisted on behalf of the Judgment
Debtors.
3.7 By the impugned order, the learned Civil Judge declined to
accede to the prayer of the petitioner observing inter alia that,
since the precept came to be sent to the District Collector,
Nashik, to effect partition, the Executing Court became functus
officio. Consequently, there was no reason to recall the order
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dated 31 January, 2023.
4. Being aggrieved, the petitioner has invoked the writ
jurisdiction of this Court.
5. Affidavits-in-reply have been filed on behalf of the
respondents. Myriad contentions have been raised by the
contesting respondents. Reference is made to the conduct of the
petitioner and the members of the branch of late Akbarsaheb,
especially the transfer of portions of the suit property by
executing registered instruments, and the substantial
development that has taken place over the suit properties
pursuant to the permission granted by the planning authority
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on the basis of the registered instruments and the partition
chart ( vatap takta ) prepared by the revenue authorities, which
has been acted upon. In the light of the question that wrenches
to the fore and the view this Court is persuaded to take, it
would be superfluous to delve into the contentions in the
affidavits-in-reply elaborately.
6. The core controversy that arises for consideration is,
whether the Executing Court becomes functus officio for all
intent and purpose once a precept is sent to the District
Collector for effecting partition in respect of lands assessed to
revenue?
7. I have heard Mr. Rafiq Dada, the learned Senior Advocate
for the petitioner in Writ Petition No. 7588 of 2026, Mr. Alankar
Kirpekar, the learned Counsel for the petitioner in Writ Petition
No. 7589 of 2026, Mr. Sanjay Shinde, the learned Counsel for
Respondent Nos. 14-A and 14-B, Mr. Rishi Soni, the learned
Counsel for Respondent Nos. 24 to 30, Mr. Rupesh Geete, the
learned Counsel for Respondent Nos. 31 to 33, Mr. R. M.
Haridas, the learned Counsel for Respondent Nos. 34 to 37, 39
to 41 and 43, and Mr. R. D. Soni, the learned Counsel for
Respondent No. 42, at some length.
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8. Mr. Dada, the learned Senior Advocate for the petitioner,
would submit that the learned Civil Judge was clearly in error
in holding that the Executing Court had become functus officio
once the precept was sent to the Collector for effecting partition.
The learned Civil Judge, according to Mr. Dada, lost sight of the
import of the provisions contained in Section 47 and Order XXI
Rule 18 of the Code of Civil Procedure, 1908 (“the Code”).
9. Mr. Dada submitted, though there is no prohibition
against the sale of an undivided interest in the suit properties,
yet, none of the co-sharers has any right to sell a specific
portion of the property till there is division by metes and
bounds. Mr. Dada would urge that, the Judgment Debtors and
their transferees have no right to erect any structure over a
particular portion of the suit properties till the partition is
effected. It was, therefore, necessary for the Executing Court to
examine the issue of the necessity of granting temporary
injunction till the Collector effects the partition, so as to
essentially preserve the suit property till the actual division by
metes and bounds. Reliance was placed on the judgments in the
cases of Shub Karan Bubna @ Shub Karan Prasad Bub vs. Sita
1 2
Saran Bubna and ors. and Rajambal vs. Murugappan ,
1
AIR 2009 SC (Supp) 2863.
2 AIR 1985 Madras 284.
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10. Mr. Kirpekar, the learned Counsel for the petitioner,
supplemented the submissions of Mr. Dada. Laying emphasis on
the phraseology of Section 47 of the Code, it was submitted that
all questions relating to the execution, discharge or satisfaction
of the decree are required to be determined by the Executing
Court only. The mere fact that the Executing Court has sent the
precept to the Collector does not imply that the Executing Court
is not in the seisin of the matter till the partition is effected by
the Collector. None of the parties or their transferees are entitled
to assume any portion of the suit property as their exclusive
property and erect structures thereon till the property is divided
by metes and bounds. Reliance was sought to be placed on the
judgment of the Supreme Court in the case of Nawab John vs.
3
V. N. Subramanian .
11. In contrast to this, Mr. R.D. Soni, who led the submissions
on behalf of the respondents, would urge that the application
before the Executing Court was completely mala fide . Identical
prayers were sought in the review petition seeking review of the
order passed by this Court in Writ Petition No. 5741 of 2023.
Those prayers were not granted by this Court. Thus, the
3 (2012) 7 SCC 738
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rejection of those prayers disentitled the petitioner to again
agitate the same issue before the Executing Court.
12. Secondly, Mr. Soni would urge, the conduct of the
petitioner and the members of the branch of late Akbarsaheb is
so gross that they are not entitled to any equitable relief.
Having sold the portions of the property which fell to their
share, the plaintiffs and the members of the late Akbarsaheb
branch intend to abuse the process of the Court to derive
further unfair advantage. Most of the purchasers are not
present before the Court. In such a situation, no restraint order
can be passed.
13. Mr. Shinde, the learned counsel for Respondent Nos. 14-A
and 14-B, submitted that, Survey No. 89 is expressly excluded
from partition by the Court. Yet, the prayers are made qua
Survey No. 89 as well. It was further urged by Mr. Shinde that
the documents produced by the petitioner do not appear to be
genuine.
14. Mr. Haridas canvassed the submissions in line with the
submissions advanced by Mr. R. D. Soni.
15. As indicated above, this Court would refrain from entering
into the thickets of facts in regard to the prayers for the grant of
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injunction and direction to the authorities to remove the alleged
encroachment, and men and machinery from the suit property.
The reason is not far to seek. The learned Civil Judge has not at
all examined the question as to whether, in the facts and
circumstances of the case, and at this stage, the prayer for
grant of temporary injunction is justifiable. In fact, without
delving into the contentious factual questions, the learned Civil
st
Judge rejected the applications to recall the order dated 31
January, 2023 and reopen the execution proceedings to the
extent of restraining the parties from entering into, and carrying
out construction over, the suit premises till the Collector effects
the partition by metes and bounds holding that, having sent the
precept to the Collector for effecting the partition under the
provisions of Section 54 and Order XX Rule 18(1), the Court had
become functus officio. Whether the aforesaid approach of the
Executing Court is justifiable?
16. A reference to the few provisions of the Code may be
advantageous to understand the scheme envisaged by the Code
in the matter of execution of the decrees for partition and
separate possession of the lands assessable to revenue and
correctly appreciate the scope of the powers of the Executing
Court and the District Collector.
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17. Section 54 of the Code reads as under:
“Section 54. Partition of estate or separation of share.
Where the decree is for the partition of an undivided estate
assessed to the payment of revenue to the Government, or for
the separate possession of a share of such an estate, the
partition of the estate or the separation of the share shall be
made by the Collector or any gazetted subordinate of the
Collector deputed by him in this behalf, in accordance with
the law (if any) for the time being in force relating to the
partition, or the separate possession of shares, of such
estates.”
18. A plain reading of the aforesaid provision would indicate
that, though the Civil Court is empowered to adjudicate the
claims in relation to, and pass a decree for, partition and
separate possession of the land assessed to the payment of
revenue to the Government, the Civil Court cannot itself execute
such a decree for partition. The decree for partition is to be
executed by the Collector or any gazetted subordinate of the
Collector. As a necessary corollary, the remit of the jurisdiction
of the Civil Court is to declare the rights of the parties in the
land assessed to revenue for the purpose of partition and
separate possession. The actual partition of such land is to be
effected by the District Collector, albeit in strict conformity with
the rights of the parties declared by the Civil Court.
19. Order XX Rule 18 of the Code reads as under:
"Order XX Rule 18. Decree in suit for partition of property or
separate possession thereof.—
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(1) Where the Court passes a decree for the partition of
property or for the separate possession of a share therein,
then—
(a) if and in so far as the decree relates to an estate assessed
to the payment of revenue to the Government, the decree
shall declare the rights and interests of the parties interested
in the property, but shall direct the partition or separation to
be made by the Collector, or any gazetted subordinate of the
Collector, in accordance with the law, if any, for the time
being in force relating to the partition, or the separate
possession of shares, of such estate;
(b) if and in so far as the decree relates to any other
immovable property or to movable property, the Court may, if
the partition or separation cannot be conveniently made
without further inquiry, pass a preliminary decree declaring
the rights and interests of the parties interested in the
property and giving such further directions as may be
required."
20. Sub-rule (1) of Rule 18 pertains to the partition of land
assessed to revenue. Sub-rule (2) of Rule 18 deals with the
manner of execution of a decree for partition or separate
possession of an immovable property other than the land
assessed to revenue. In the instant case, we are primarily
concerned with sub-rule (1) of Rule 18 of Order XX.
21. Though sub-rule (1) of Rule 18 of Order XX does not
expressly refer to the passing of a preliminary decree, unlike
sub-rule (2) of Rule 18, yet there does not appear much
qualitative difference in the character of the decree passed
under sub-rule (1) and (2) of the Rule 18 as in both the
scenarios, further action is warranted for the execution of the
decree. The decree passed by the Court finally determines the
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right of the parties in the suit property which is to be
partitioned and separately carved out. In the case of the land
assessed to revenue, the partition is to be effected by the
Collector. In the case of any other property, the preliminary
decree is followed by the appointment of a Court Commissioner
to carry out the partition and separate possession.
22. The provisions contained in Section 47 of the Code also
deserve to be noted. They read as under:
Section 47. Questions to be determined by the Court
executing decree.
(1) All questions arising between the parties to the suit in
which the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the
decree, shall be determined by the Court executing the decree
and not by a separate suit.
…...
(3) Where a question arises as to whether any person is or
is not the representative of a party, such question shall, for
the purposes of this section, be determined by the Court.
[ Explanation 1.-- For the purposes of this section, a plaintiff
whose suit has been dismissed and a defendant against
whom a suit has been dismissed are parties to the suit.
Explanation II .-- (a) For the purposes of this section, a
purchaser of property at a sale in execution of a decree shall
be deemed to be a party to the suit in which the decree is
passed; and
(b) all questions relating to the delivery of possession of
such property to such purchaser or his representative shall
be deemed to be questions relating to the execution, discharge
or satisfaction of the decree within the meaning of this
section.”
23. In the backdrop of aforesaid provisions, the question as to
whether, after making a reference to the Collector for partition
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and separate possession of the land assessed to revenue, the
Executing Court becomes functus officio for all intent and
purpose, is required to be examined.
24. A conjoint reading of the provisions contained in Section
54 and Order XX Rule 18(1) of the Code would indicate the
broad division of the powers of the Civil Court and that of the
Collector in the matter of execution of a decree for partition and
separate possession of the land assessed to revenue. It is in the
matter of the actual partition and carving out the shares, or for
that matter, the adjustment of the shares in the land, the
Collector or the Officer to whom the Collector delegates the
power, has the full authority. It can be urged that, the Court’s
jurisdiction is confined to the determination of the rights of the
parties, and sending the precept for execution of the decree to
the Collector. Actual partition is within the province of the
authority of the Collector. The primary reason for such
mechanism is that, the revenue authorities have the experience
and expertise in the matter of actual division of lands assessed
to the revenue. The secondary reason is the protection of the
interest of the State Government in the matter of collection of
revenue.
25. After the Court sends a precept to the Collector for
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effecting partition, the matter is in the realm of the revenue
authorities. At that stage and while the revenue authorities are
in seisin of the matter, the Civil Court cannot trench upon the
powers of the revenue authorities in the matter of the actual
division of the property. Nor can the Civil Court issue directions
to the revenue authorities to effect the partition in a particular
manner. From this perspective, interference by the Civil Court in
the process of effecting partition by the Collector is not
countenanced on the premise that, having passed the decree,
determined the shares of the parties and sent the decree to the
Collector for effecting partition, the Civil Court becomes functus
officio .
26. A reference to few judicial precedents may now become
apposite. In the case of Ningappa Balappa and others vs.
4
Abashkhan and others , a Division Bench of this Court
enunciated that after a decree for partition of land assessed to
revenue has been passed, the Court has nothing further to do
with the decree. It is to be executed and the partition is to be
effected by the Collector. There cannot, therefore, be any
execution proceedings before the Court in the case of such a
decree. The observations in paragraph 5 of the aforesaid
4 AIR 1956 Bombay 345.
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decision are material. They read as under:
“5. It is true that it has been held in several cases that the
Court is not entirely deprived of controlling the action taken-
by the Collector. But this control is very limited. It is to be
exercised only if the Collector contravenes the decretal order
or transgresses the law relating to partition or refuses to
execute the decree. See the cases cited at p. 223 of Sir
Dinshaw Mulla's Code of Civil Procedure, 12th Edition.
In this case, it is not alleged that the Collector has acted or
intends to act contrary to the decree or any law relating to
partition. What is alleged is that the Collector might act
contrary to the provisions of the Bombay Tenancy and
Agricultural Lands Act, 1948.
But, as the Court's duties came to an end when it Passed the
decree and as no proceedings in execution can be taken by it,
it is not open to the Court to entertain an application under
Section 47 and give directions to the Collector in regard to the
manner in which he should execute the decree.”
(emphasis supplied)
27. In the case of Kisan Bhikaji Dalvi (deceased) by LRs vs. V.
5
Krishnabai Maruti Dalvi , the learned Single Judge held that
when the matter comes before the Collector then he has to pass
the final order by coming to the conclusion, how the land
should be partitioned between the parties; and then he has to
execute that decree by actually putting the parties in possession
of the portions allotted to them. The Civil Court has no say in
the matter as to how the land be partitioned between the
parties, so far as preparing the final order. All that work is to
be done by the Collector. If the partition suggested by the
Collector is not as per directions issued in the decree or there is
5 (2001) 1 CIVLJ 123.
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any other challenge to such partition suggested by the Collector,
then the aggrieved party has to file an appeal against such an
order against the Collector before the authority prescribed
under the Land Revenue Code. The dispute regarding such a
partition cannot be brought before the Civil Court.
28. In the case of Shub Karan Bubna (supra) in regard to the
execution of a decree for partition of the land assessed to
revenue, the Supreme Court culled out the principles as under:
“9.1 In regard to estates assessed to payment of revenue to
the government (agricultural land), the court is required to
pass only one decree declaring the rights of several parties
interested in the suit property with a direction to the Collector
(or his subordinate) to effect actual partition or separation in
accordance with the declaration made by the court in regard
to the shares of various parties and deliver the respective
portions to them, in accordance with section 54 of Code.
Such entrustment to the Collector under law was for two
reasons. First is that Revenue Authorities are more
conversant with matters relating to agricultural lands.
Second is to safeguard the interests of government in regard
to revenue. (The second reason, which was very important in
the 19th century and early 20th century when the Code was
made, has now virtually lost its relevance, as revenue from
agricultural lands is negligible). Where the Collector acts in
terms of the decree, the matter does not come back to the
court at all. The court will not interfere with the partitions by
the Collector, except to the extent of any complaint of a third
party affected thereby.
(emphasis supplied)
29. In the case of Bhagwansingh vs.Babu Shiv Prasad and
6
another , a Division Bench of the Madhya Pradesh High Court,
in terms, observed that after passing of the preliminary decree
6 AIR 1974 Madhya Pradesh 12.
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for partition of an undivided estate assessed to the payment of
land revenue, the Civil Court becomes functus officio . The
observations in paragraph 5 read as under:
“5. …… The reason is that the revenue authorities are
more conversant and better qualified to deal with such
matters than the Civil Court and interest of the Government
with regard to the revenue assessed on the assets would be
better safeguarded by the Collector executing the decree than
by the Court. The partition contemplated by Section 54 is not
confined to mere di vision of lands but includes also the
delivery of the shares of the respective allottees. Thus, the
Collector or his subordinate would be completely carrying out
the partition. The civil Court after passing of the preliminary
decree for partition of an undivided estate assessed to the
payment of land revenue becomes functus officio and it
would have no jurisdiction to act in any manner thereafter so
as to pass a final decree or deliver possession to a party in
accordance with the said decree.”
30. To what extent, the principle of the Civil Court becoming
functus officio can be extended, is the moot question. In regard
to the matters of proposing partition, actual division of the
property having regard to the relative advantages and
disadvantages of the particular parcels of land, fertility of the
land, location thereof and as well as the delivery of possession,
the field is exclusively within the domain of the revenue
authorities. The Civil Court is precluded from giving directions
in regard the actual method and manner of division of the land.
However, where the controversy arises in regard to matters,
which are beyond the competence of the revenue authorities,
could it be urged that, having sent the precept to the Collector,
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the Civil Court becomes functus officio?
31. Section 47 of the Code mandates that all questions arising
between the parties to the suit in which the decree was passed
and relating to the execution, discharge or satisfaction of the
decree shall be determined by the Court executing the decree
and not by a separate suit. If the question relates to preserving
the subject matter of the decree, in the interregnum i.e. from
the date of passing of the decree to the actual partition by the
Collector, such question can be legitimately determined by the
Civil Court. In a situation of such nature, the Collector would
not have the jurisdictional competence to discharge adjudicatory
role (apart from that of effecting the partition). In my
considered view, in such cases, the principle that after sending
the precept to the Collector the Civil Court becomes functus
officio, cannot be stretched to such extent that an absurd
situation may emerge where the affected parties are rendered
remediless.
7
32. In the case of Abdul Rejak Laskar vs. Mafizur Rahman ,
the Supreme Court elaborately examined the provisions
contained in the Code in regard to the execution of the decree
for partition in respect of the land assessed to revenue. The
7 AIR OnLine 2024 SC 956.
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Supreme Court observed that though the Court has no power to
fetter the discretion of the Collector in the matter of effecting
partition, yet, in regard to any issue which the Collector is not
competent to decide, the Civil Court will have the power to deal
with such issue. The observations in paragraph 47 of the
judgment are instructive and hence extracted below:
“47. In regard to estates assessed to payment of revenue to
the government (agricultural land), the court is required to
pass only one decree declaring the rights of several parties
interested in the suit property with a direction to the
Collector (or his subordinate) to effect actual partition or
separation in accordance with the declaration made by the
court in regard to the shares of various parties and deliver
the respective portions to them, in accordance with Section
54 of CPC. If the Collector takes action in the decree
appropriately, the matter will not come back to the court and
the court will not have to interfere in the partition, except
attending any complaint of an affected third party. While
making the partition the Collector is bound by declaration of
the rights of the parties in the preliminary decree. But the
Court has no power to fetter the discretion of the Collector
conferred under the law. However, in regard to any issue on
which the Collector is not competent to decide, the civil
court will have the power to dispose of. If the Collector
disregards the terms of the decree, the Court is entitled to
refer the case back to the Collector to re-partition the
property. The Collector must actually divide the estate in the
manner he thinks best keeping in mind the nature of the
land as revenue paying entity and the stipulations of the
decree. The object of this provision is two-fold:
a. First, the revenue authorities are more conversant and
better equipped to deal with such matters than a civil court,
and;
b. Secondly, the interest of the government in regard to the
revenue paying estate would be better safeguarded by the
Collector than by the civil court.”
(emphasis supplied)
33. In the considered view of this Court, a distinction is
required to be drawn in the matter of the jurisdictional limits of
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the Civil Court in relation to execution of a decree for partition
of land assessed to revenue. At the one end of the spectrum are
the cases where the Collector effects the partition on the
strength of the power conferred under Section 54 and Order XX
Rule 18(1). In that province, the Civil Court cannot interfere by
issuing directions in regard to the manner of partition nor can
fetter the discretion of the Collector as to the division of the
property in a particular fashion and in applying a particular
standard/norm for that purpose. At the other end of the
spectrum are the cases where the dispute arises between the
parties during the period that intervenes the passing of the
decree and the actual division of the land by metes and bounds
by the Collector. In such cases, the Collector cannot perform
any adjudicatory role. Such issues are required to be decided by
the Civil Court; either by the Executing Court by exercising
power under Section 47 or otherwise in exercise of plenary civil
jurisdiction. In such a situation, the principle that, having sent
the decree for effecting partition to the Collector, the Civil Court
has become functus officio cannot be pressed into service to
denude the Civil Court’s power as the said principle cannot have
universal application, de hors the fact-situation of the case.
34. On the aforesaid touchstone, reverting to the facts of the
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case, it becomes abundantly clear that the issues raised by the
petitioner in the application filed before the Executing Court do
not touch upon the aspect of actual partition and carving out of
separate shares by the Collector. The case of the petitioner was
that during the pendency of the execution proceedings, on the
basis of third party rights created by the sharers, or their
successor in interest, development is being carried out over the
portions of the suit property, and that will cause prejudice to
the rights of the parties. The learned Civil Judge did not
examine whether the application filed by the legal representative
of the decree holder, could be adjudicated under Section 47 of
the Code, or whether the Executing Court could not at all delve
into the grievance of the petitioner or whether the remedy of the
petitioner was to approach the Civil Court exercising the original
jurisdiction, or the applications did not deserve to be considered
on merits on account of the attendant circumstances and the
conduct of the parties. The learned Civil Judge rejected the
application on the sole ground that having sent the precept for
execution of the decree for partition, the Civil Court had become
functus officio .
35. Consistent with the view this Court is persuaded to take,
the impugned order summarily rejecting the applications on the
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ground that the Executing Court has become functus officio,
does not deserve to be sustained.
36. Resultantly, the petitions deserve to be partly allowed and
the applications are required to be remitted back to the
Executing Court for a fresh decision on merits after providing an
opportunity of hearing to parties. It is also necessary to clarify
that this Court has not delved into the merits of the application,
including tenability of those applications before the Executing
Court.
37. Hence, the following order:
: O R D E R :
(i) The petitions stand partly allowed.
(ii) The impugned order stands quashed and set aside.
(iii) The applications preferred by the petitioner stand restored
to the file of the Executing Court.
(iv) The Executing Court is requested to hear and decide the
applications afresh in accordance with law, after providing
an effective opportunity of hearing to the parties.
(v) By way of abundant caution, it is clarified that this Court
has not delved into the merits of the applications,
including tenability of those applications before the
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Executing Court .
(vi) Rule made absolute to the aforesaid extent.
(v) No costs.
[N. J. JAMADAR, J.]
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