Executing court can address property-preservation disputes pending Collector’s partition, Bombay High Court rules

Akbarsaheb Kokani instituted Regular Civil Suit No. 102 of 1963 for administration of the estate of his father and uncle.

The suit was decreed on 29 August 1968, declaring the parties’ shares in the house properties, agricultural lands and compensation arising from acquired land.

During the subsequent execution proceedings, third-party rights and successive transfers were created in respect of portions of the suit properties.

On 5 May 2001, the Executing Court issued a precept to the Collector, Nashik, under Section 54 of the Code of Civil Procedure, 1908 (“CPC”), for partition of the revenue-assessed lands; the partition had not been completed.

By order dated 31 January 2023, the Executing Court directed the Collector to execute the precept in accordance with the declared rights of the parties.

That order was challenged in Writ Petition No. 5741 of 2023, which was disposed of with directions to the Collector to hear all concerned parties and effect partition in accordance with the preliminary decree and law.

The legal representative of the decree-holder thereafter applied before the Executing Court to recall the order dated 31 January 2023 to the limited extent of seeking temporary restraint against the parties, their agents and assignees from entering upon or undertaking construction on the suit properties until partition by metes and bounds, along with police assistance for removal of men and machinery.

The Executing Court rejected the applications, holding that after issuance of the precept to the Collector, it had become functus officio.

The decree-holder’s legal representative challenged that order in the present petitions.

1. Whether the Executing Court becomes functus officio for all purposes upon issuing a precept to the Collector under Section 54 CPC and Order XX Rule 18(1) CPC for partition of revenue-assessed land.

2. Whether the Executing Court could examine an application seeking protection and preservation of the subject matter pending actual partition by the Collector, including a request to restrain construction activity.

3. Whether the applications were liable to be rejected without examination on merits solely on the ground that the precept had been issued to the Collector.

Section 54 CPC and Order XX Rule 18(1)(a) CPC allocate the actual partition and separation of shares in revenue-assessed estates to the Collector or his gazetted subordinate, while the Civil Court declares the rights and interests of the parties.

The Collector has exclusive authority over the actual division, adjustment and allotment of parcels and delivery of possession, and the Civil Court cannot dictate the manner of partition or fetter the Collector’s statutory discretion.

Section 47 CPC requires questions relating to the execution, discharge or satisfaction of a decree arising between the parties or their representatives to be determined by the executing court and not by a separate suit.

The Court relied on Ningappa Balappa v. Abashkhan, AIR 1956 Bombay 345, and Kisan Bhikaji Dalvi v. V. Krishnabai Maruti Dalvi, (2001) 1 CIVLJ 123, for the limited role of the Civil Court after reference to the Collector.

The Court relied on Shub Karan Bubna v. Sita Saran Bubna, AIR 2009 SC (Supp) 2863, concerning the statutory scheme under Section 54 CPC.

Abdul Rejak Laskar v. Mafizur Rahman, AIR OnLine 2024 SC 956, holds that although the Civil Court cannot control the Collector’s discretion in partition, it retains jurisdiction over issues beyond the Collector’s competence and may intervene where the Collector disregards the decree.

The High Court distinguished between matters falling within the Collector’s exclusive domain—namely, the actual division of land, adjustment of parcels and delivery of possession—and disputes requiring adjudication by a judicial forum.

The decree-holder’s applications did not seek directions prescribing how the Collector should partition the land.

They sought preservation of the subject matter during the period between issuance of the precept and actual partition, on the ground that construction and development based on transfers by co-sharers or their successors could prejudice the parties’ declared rights.

Such protective or interim questions were beyond the Collector’s adjudicatory jurisdiction and could potentially be considered by the Executing Court under Section 47 CPC, or by a competent Civil Court in its original jurisdiction.

Accordingly, the Executing Court erred in rejecting the applications solely by treating itself as wholly functus officio, without determining whether the applications were maintainable, whether interim protection was warranted, or whether the parties’ conduct and surrounding circumstances justified relief on merits.

Although the Collector exclusively controls the manner of actual partition and allotment, the Civil Court retains jurisdiction to adjudicate issues beyond the Collector’s competence, including appropriate questions concerning preservation of the subject matter pending partition.

The impugned order dated 20 April 2026 was quashed and set aside, and the decree-holder’s applications were restored to the Executing Court for fresh determination on merits after giving all parties an effective opportunity of hearing.

The High Court expressly left open the merits and tenability of the applications and made the Rule absolute to that extent, with no order as to costs.