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Judgment
R.M. Borde, J.—Rule. Rule made returnable forthwith. With the consent of the parties, matter is taken up for final hearing at admission stage.
Petitioner who is the judgment debtor in Regular Darkhast No. 63/2000 presented by respondent No. 3/decree holder is raising challenge to order passed below exh. 29 and 32 by the 5th Jt. Civil Judge, Jr.Dn., Majalgaon on 16-6-2007 whereby objection application tendered by petitioner came to be rejected.
Regular Civil Suit No. 124/84 was presented by respondent No. 3 claiming declaration, injunction and alternatively partition and separate possession of his 1/6th share in the suit property. Suit property is plot out of survey No. 375/3 situate within the limits of Majalgaon. Plaintiff/decree holder claims his entitlement to an area to the extent of 55 X 35 ft. Institution/petitioner herein is the purchaser of shares in larger area from other defendants. Defendant No. 1 represented the local school committee in his capacity as Secretary of Bharatiya Shikshan Prasarak Sanstha, Ambajogai. Suit presented by plaintiff after due contest was decreed and the trial court declared that plaintiff to be entitled to have 1/6th share in the suit property as described in para No. 1 of the plaint. It was also further declared that he is entitled for partition and separate possession of 1/6th share and decree was directed to be sent to the Collector for execution in view of provisions of Section 54 of the Code of Civil Procedure. Decree passed by the trial court was subjected to challenge in first appeal as well as second appeal by the defendant No. 1/petitioner. First appeal as well as second appeal presented by the contesting defendant came to be dismissed and as such decree passed by the trial court has attained finality. After decree was sent to the Collector for execution certain steps were taken by the revenue authority. Finding that steps are not being taken for execution of decree expeditiously, the decree holder/respondent No. 3 herein approached this Court by presenting Writ Petition No. 3380/06 putting forth his grievance and sought writ of mandamus directing the revenue authority to execute decree expeditiously. The Division Bench of this Court while disposing of writ petition has issued directions to the revenue authority/respondent therein to execute the decree as expeditiously as possible subject to the orders which would be passed in the pending writ petition bearing No. 4214/07 (i.e. the instant petition.)
In the application raising objection to executability of the decree, the judgment debtor has raised mainly three objections. Firstly it is contended that the decree passed by the trial court is not executable as the judgment debtor has raised construction over the property. There is no further direction for demolition of construction and handing over of the vacant possession of the plot. It is contended that in the absence of such direction, decree passed by the trial court cannot be executed. Second objection raised by the judgment debtor is that the decree passed by the trial court is preliminary one and as such cannot be put to execution. It is contended that only a final decree can be executed and in the instant matter there is no final decree passed, as such the matter ought not to have been referred to the revenue authority for execution. Third objection raised is regarding proceedings being taken up by the revenue authority in respect of execution of decree. It is contended that the executing court ought not to have referred the matter for partition u/s 54 of the CPC as there is no record to indicate that the disputed property is assessed for land revenue. Trial court after considering the rival contentions, turned down all the objections while rejecting the objection application tendered by the judgment debtor.
So far as the first objection raised by the petitioner/judgment debtor in respect of non-executability of the decree is concerned, it appears on perusal of judgment in Regular Civil Suit No. 124/04 that during pendency of the proceedings before the trial court, the disputed area was an open plot. Construction has been raised by defendant during continuance of the litigation. Judgment debtor therefore has to face the consequences of raising construction during the continuance of the litigation as same shall always be subject to final outcome of the civil proceeding. Executing court while turning down the application presented by the petitioner has specifically observed that whatever construction that has been raised over the road or in the surrounding area is against law. Judgment debtor cannot seek any advantage of the wilful unlawful acts committed by them during continuance of the litigation. Objection that in the absence of specific direction for demolition of construction, vacant possession of the suit plot cannot be handed over to the decree holder, is also without substance. Construction itself which is raised during the continuance of the litigation shall always be treated subject to final outcome of the litigation and position prevailing on the date of presentation of the suit shall have to be considered. It is therefore absurd to contend that in the absence of any specific direction, vacant possession of the suit plot cannot be handed over to the judgment debtors.
Another objection raised by the petitioner herein that decree is in the nature of preliminary decree and cannot be executed, is also without any substance. Direction contained in the decree is in respect of entitlement of plaintiff to have 1/6th undivided share in the suit property described in the plaint. Trial court has specifically directed to send decree for partition to the Collector in view of Section 54 of the Code of Civil Procedure. The term ''decree'' has been defined in Section 2(2) of the CPC thus:
2(2). "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 114, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;
Section 54 of the CPC prescribes procedure in respect of partition of asset or separation of shares which reads as:
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.
So far as executability of decree is concerned, Order 20 Rule 18 of the CPC lays down thus:
Decree in suit for partition of property or separate possession of a share therein -
Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, -
(1) 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 of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section
if and in so far as such 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 of the several parties, interested in the property and giving such further directions as may be required.
On perusal of the aforesaid rule, it would be clear that when a decree relates to an estate assessed to the payment of revenue to the Government, it shall declare the rights of the several parties interested in the property but shall direct such partition or separation to be made by the Collector or any gazetted subordinate of the Collector, in accordance with such declaration and with the provisions of Section 54. Objection raised by the petitioner that the decree being preliminary cannot be put to execution, is not acceptable. Decree, in view of Section 2(2) of the CPC shall be partly preliminary and partly final. Considering the nature of the decree, it cannot be said that the procedure adopted in the matter is in violation of the provisions of Code of Civil Procedure. Mode in respect of execution of decree for partition as provided under the CPC has been followed and the decree is sent for partition to the Collector as provided u/s 54, cannot be said to be in violation of the provisions of the Code of Civil Procedure.
It would be convenient to make reference to observations made in reported judgment of this Court in the matter of 970321--> .
When there is declaration of share in the partition suit with respect to lands, assessable to land revenue, the job of the Civil Court comes to an end by making such a declaration, and all further proceedings regarding effecting partition, may be by first preparing a final decree and then by executing the sae, is to be carried out by the Collector, as per the provisions of Section 54, Civil Procedure Code. That was rightly done in the present matter. The contention of the petitioner that the decree was only a preliminary decree and, therefore, it could not be executed without final decree is misconceived. The further steps in such a suit are required to be taken by the Collector; and for that purpose, the Civil Court has to transmit the papers to the Collector. Thereafter, the Collector has to take appropriate steps for partition, as per the directions issued in the decree. It is not expected that any final decree be prepared by the Civil Court. If that be the position, then the very purpose of Section 54 and Order XX, Rule 18, Civil Procedure Code, will be lost. So, the further proceedings in such matter continue before the Collector and not before the Civil Court.
Reliance is placed on the judgment in the matter of Hasham Abbas Sayyad Vs. Usman Abbas Sayyad and Others, . I have perused the judgment. Ratio laid down in the reported judgment is not applicable to the instant case. Considering the fact of the instant case, as I have stated above, there does not appear to be any infirmity in sending the decree for execution to the Collector.
Objection that the property is not assessed to the land revenue is taken for the first time in execution application. There is no material placed on record to substantiate the contentions. Moreover, it is contended that the property is situate within the limits of municipal council and therefore, execution of decree through the Collector is not permissible. It would not be permissible to accept the contention that as the property is situate within the limits of municipal council, it shall be deemed to be property not assessable to the land revenue.
On perusal of the judgment delivered by the trial court it appears that at the time when the suit was instituted, the property was agricultural property and there is no material placed on record to demonstrate that the property is converted to non-agricultural use and as such is not assessed for land revenue. Apart from this, decree passed by the trial court itself contains directions for sending the matter for execution to the Collector u/s 54 of the Code of Civil Procedure. The part of the direction contained in the decree has been confirmed in appeal before the first appellate court as well as by second appellate court. It is therefore not open for the petitioner to raise such an objection. Trial court was therefore right in rejecting the contentions raised by the plaintiff that decree ought not to have been sent to the Collector for execution in view of Section 54 of the Code of Civil Procedure.
Shri Choukidar, learned Counsel for the petitioner placed reliance on judgment in the matter of Baban Shamrao Menghare and Anr. v. Madhukar S/o Shamrao Menghare and Ors. reported in 2007(1) Mh.L.J. 306 and contended that observation of the trial court that the executing court cannot go behind the decree is not correct. According to him, certain events have taken place subsequent to passing of the preliminary decree, therefore, the court would have jurisdiction to pass another preliminary decree for varying the shares of the parties. There cannot be any dispute in regard to the proposition laid down in the aforesaid judgment. In the instant matter, order passed by the trial court rejecting the objections raised by the petitioner cannot be said to be faulted for the reason that whatever change that has occurred is during continuance of the litigation and is in respect of raising construction by the decree holder. Apart from this, raising of such construction has been branded as illegal by the trial court. In this view of the matter, trial court was justified in refusing to protect the judgment debtor as the acts committed by them were in violation of law and as construction is raised during the continuance of the litigation, it shall be deemed to be at their risk.
In this view of the matter and for the reasons recorded above, in exercise of extra ordinary powers conferred under Article 227 of the Constitution of India, no interference is called for in the petition. Petition stands rejected. Rule made absolute in above terms. In the facts and circumstances of the case, there shall be no order as to costs.
Learned Counsel for the petitioner contends that he was protected by this Court while issuing notice to the respondents and contends that the protection may be continued for further period so as to enable him to approach the Apex Court. Ad-interim relief granted on 31-7-2007 shall remain operative for further period of six weeks from today.
Pending civil application, if any, stands disposed of.