JUDGMENT - BOBDE S.A., J.:---By this petition the defendant/judgment Debtor challenges the order of the District Court, Ratnagiri dismissing his appeal by which he had made a grievance about the manner in which the Collector had effected the partition after a decree had been passed by the Civil Court.

2. The respondents here i.e. Appaji Gulabrao @ Ganpatrao Bhosale, since deceased, now represented by his legal representatives and others had instituted a Regular Civil Suit No. 50 of 1971 against the petitioner and some others, who are defendants. The parties to the suit were related to each other. The suit resulted in decree to the effect that the suit land should be divided equally between the contesting parties i.e. the plaintiff would be entitled to a half share and the defendants should be entitled to another half.

3. This decree was passed in accordance with the consent terms entered into by the parties. The consent terms referred to the properties in possession of the parties. Clause 5 of the consent terms provided that the partition should be made as far as possible having regard to the present position of the property. It is this clause which has mainly give rise to the present controversy.

4. The Civil Court sanctioned the compromise and consent decree for execution to the Collector. Before the Collector, the petitioners objected to the manner in which the property was being partitioned. According to the petitioner, it was not necessary to handover possession of certain property to the respondents while effecting the partition.

5. These objections were considered in detail by the Collector who observed that partition must be in accordance with the decretal mandate i.e. the property should be divided in half. The Collector also observed that the property has been divided so as not to violate the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. This decision of the Collector was challenged by the petitioner by way of an application under section 47 of the Civil Procedure Code. This application was heard by the Civil Judge, Junior Division, Khed, who observed that the decree did no contain any specific order that particular part should be given to a particular person. The learned Civil Judge, Junior Division, Khed also observed that the decree referred to the properties which were in the enjoyment of the party and there was no stipulation that a particular property should be retained with that party. The Civil Judge, Junior Division therefore held that the Collector had not contravened the decretal order or transgressed the law relating to partition.

6. The petitioner preferred an appeal against this order before the District Judge, Ratnagiri who dismissed the appeal. The learned District Judge held that no application complaining of the violation of the decretal mandate can be entertained by the Civil Court since the Civil Court becomes functus officio after it sends the decree to the Collector for partition under section 54 read with Order XX, Rule 18. It is this judgment and order which is challenged in the present petition.

7. Mr. Bhadiwadekar, learned Counsel for the petitioner submitted that the learned District Judge committed a serious error of law in holding that a Civil Court has no jurisdiction, that the Civil Court becomes entirely functus officio and cannot consider the question whether the Collector has effected the partition in accordance with the decretral mandate. The learned Counsel further submitted that the learned District Judge has wrongly relied on the decision of the Nagpur High Court in the case of (Lachhiram Jasram v. Nanba Dhanaji and others)1, reported in A.I.R. 1946 Nagpur page 353.

8. Having heard the learned Counsel for the petitioner, I find that the learned District Judge could not have dismissed the appeal on the ground that the Civil Court becomes functus officio after it sends the decree for partition and cannot in any circumstances consider whethe

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