Result: Writ Petition dismissed.

A. S. Pachhapure, J.

The Petitioner has challenged the order dated 16.02.2006 rejecting his application filed under Section 151 of Civil Procedure Code.

2. The facts relevant for the purpose of this petition are as under:

The Civil Suit No. 40/1954 instituted by Sri Rudrappa @ Appasaheb Avati seeking the relief of partition and separate possession of his shares in the agricultural lands and house sites described in the schedule ‘A’ and ‘B’ of the plaint. The suit came to be decreed on 27.10.1956 and the copy of Decree is produced at Annexure ‘B’. Aggrieved by the judgment and decree the appeals in R.A. Nos. 26/1957, 31/1957 and 45/1957 were filed and ultimately the appeals were disposed of vide order dated 04.11.1965 vide Annexure ‘C’.

3. After the death of Rudrappa the plaintiff in the said audit his legal representatives i.e., wife and children respondent Nos. 1 to 5 initiated final decree proceedings in FDP No. 9.2003 and the copy of the application has been produced at Annexure ‘F’.

4. Thereafter, that on 17.12.1980 the petitioner purchased the property bearing RS No. 1392-C/3B to an extent of 10 guntas and 15 annas under a registered sale deed from defendant No. 11 in the said suit. The petitioner was impleaded as Respondent No. 12 in the final decree proceedings. The petitioner filed I.A. No. V under the provisions of the Section 151 of Civil Procedure Code requesting the Court to decide the preliminary objection regarding maintainability of the final decree proceedings filed by respondent Nos. 1 to 5 under the provision of Order 20 Rule 18 of Civil Procedure Code alleging that, the decree dated 27.10.1956 confirmed by this Court on 04.11.1965 cannot be enforced as it is barred by limitation. In support of the said application, the petitioner sworn to an affidavit alleging the facts and contended that the final decree proceedings has been constituted in the year 2003 though the decree was passed in 04.11.1965 and the limitation provided for Execution of the decree is 12 years under Article 136 of the Limitation Act, 1963, and the proceedings initiated by respondent Nos. 1 to 5 are barred by time. It was also his contention that as the proceedings are not maintainable there is no question of appointing a Commissioner for affecting the division and in the circumstances requested the Trial Court to decide on the question of maintainability and as the Trial Court rejected the request by dismissing the application he has approached this Court by way of this petition under Articles 226 of the Indian Constitution.

5. I have heard the learned Counsel for the petitioner and also the respondents.

6. It is the contention of the learned Counsel for the petitioner that the decree which came to be passed on 27.10.1956 vide Annexure ‘B’ is in the nature of final decree and that it is not at all a preliminary decree and therefore, the submits that the final decree proceedings initiated by respondent Nos. 1 to 5 in the year 2003 are not within a period of 12 years as contemplated under Articles 136 of the Limitation Act. It is also his submission that the decree referred to supra is not a preliminary decree at all and as there is a direction in the decree itself to file the Execution proceedings, and the respondent Nos. 1 to 5 cannot initiate the proceedings under Order 20 Rule 18 of Civil Procedure Code and therefore, he submits that the initiation of the proceedings itself is illegal. It is also his submission that there was a direction in the decree to effect the partition of the buildings and sites by appointing a Commissioner in the Execution proceedings, and he contends that respondent Nos. 1 to 5 cannot approach under the provisions of Order 20 Rule 18 of Civil Procedure Code and as the Execution itself is not within 12 years and the request of the respondent Nos. 1 to 5 cannot be granted. The learned Counsel also submitted that in between 1956 to 2003 much water has flown and as the petitioner invested lot of money by putti