The duty of drawing a final decree after a partition decree lies with the court, and the application for drawing up a final decree is not governed by any article of the Limitation Act.

1. This regular second appeal preferred by the plaintiff arises out of Execution Petition No. 75 of 1982 on the file of Additional Munsiff and JMFC, Chikodi. This execution petition was to execute the partition decree granted in O.S. No. 174 of 1953 which was confirmed in R.A. No. 416 of 1954. Therefore, the decree of O.S. No. 174 of 1953 is yet to be executed and the same is pending for 45 years as on date. It is quite unfortunate that such position is rendered by the fight between the parties and the delay has occurred in Courts.

2. The suit for partition by one Appalal Mohammed Desai, against his brothers ended in a decree. The sons and daughters of deceased Isaqwallad Ahamad Desai have presented the execution petition for partition to direct the papers to be sent to Deputy Commissioner for effecting the partition under Section 54 of the CPC. It was claimed that the decree-holder was entitled for 1/4 share and if that be the legal position and if the partition in the suit properties hit by the provisions of Prevention of Fragmentation Act, the decree-holders be paid compensation thereof.

3. The judgment-debtors 1A to ID alone filed their objections contending that the decree-holders 1A and IB are not the son and daughter of the deceased Isaq, the decree is not executable until final decree is passed. The decree is dated ...1953 and it should have been executed within 12 years; therefore the decree dated 1953 is barred by limitation and the execution petition filed beyond 12 years. The judgment-debtors have perfected the title by adverse possession as well.

4. Rejecting all the technical vexatious contentions raised by the judgment-debtor, the Trial Court allowed the Execution Petition and the relevant records are directed to be sent to Deputy Commissioner, Belgaum with a direction to effect the partition under Section 54 of the CPC in respect of the suit agricultural lands and this order came to be confirmed by the First Appellate Court. The second appeal is filed only by Appalal Mohammed Desai, who was judgment-debtor 1A by raising the following question of law.-

"Whether the Courts below were justified in directing the decree and records to be sent to the Deputy Commissioner, Belgaum with a direction to effect partition under Section 54 of the CPC, in an execution petition filed in 1982, relating to a partition-decree made in 1954?"

5. Appellant judgment debtor 1A further raised the question of adverse possession and non-passing of final decree and that the respondent/decree holders 1A and IB are not real legal heirs of original decree-holder.

6. The above question is answered in Gartapatrao Roajirao Desai v Balavant Krishnaji Desai and Others. In the said decision it is held.-

". . . . A decree passed under Rule 18(1) of Order 20 directing partition by the Collector cannot be said to be a preliminary decree. So far as the Civil Courts are concerned it is final for all purposes, though the partition of the property may remain to be effected by the Collector. Sub-rule (1) of Rule 18 does not contemplate any application to be filed by the parties for sending the papers to the Collector. It says that the Court 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 54. This direction must be deemed to be a part of the decree. Any application filed before the Court which passed the decree to send the papers to the Collector could only be considered as a reminder to the Court to follow up its direction given under sub-rule (1) of Rule 18. No period of limitation is provided for such a reminder as the same is not one contemplated by law. In sending the papers to the Collectors Court is not performing any judicial function; nor is it required to pass any judicial order. Its function could at best be described as ministerial. It will be inappropriate to call such an applic