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IN THE HIGH COURT OF BOMBAY
S. B. DESHMUKH, J.
Kusum Dashrath Kharmare, PETITIONER
Versus
Popat Madhav Gangarde, RESPONDENTS
WRIT PETITION NO.: 974 OF 2006
DATED: 30th AUGUST, 2007.
A reference is also made to the order passed by the Appellate Court in Review Application. From the order it appears that the Appellate Court has referred to a judgment of the Apex Court in the matter of Khemchand (supra). The Appellate Court, while rejecting the review application, observed that the Collector has ample powers in view of citation i.e. AIR 1983 SC 124 and he should allot the share of the deceased after passing of the decree. Advocate for the Respondents Mr. Gaware submits that finality has been attributed so far as decision in Misc. Civil Application No. 5 of 2004 is concerned. However, I can not ignore the fact that preliminary decree passed by the trial Court is made final by the first Appellate Court in Regular Civil Appeal No. 269 of 1997. In this view of the matter, there is no impediment while considering this writ petition favorably, despite rejecting of Day Application No. 5 of 2004 (Review) by the first Appellate Court on 17th September, 2004. It cannot be ignored that the Collector has sought a guidance from the Civil Court. Person holding decree by the competent Civil Court, in law is entitled to seek its ultimate satisfaction in accordance with provisions of law.
Civil Procedure Code, 1908 - Sections 2(2) and 54 - Decree - Preliminary decree - Suit to partition - Passing of more than one preliminary decree not prohibited by Code if same justified by circumstances - And if it may be necessary to do to, particularly in suits for partition. - There is no prohibition in the Code for passing of more than one preliminary decree, if circumstances justify the same and if it may be necessary to do so particularly in partition suits. After passing of the decree, some parties to suit, may die and shares of other parties thereby may increase. In case of such death of a party to partition suit, augmentation of shares in relation to parties to the suit would be legal and natural. In my opinion it would be convenient to the Court and advantageous to the parties, especially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a finalisation of the final decree. If such exercise is undertaken either at the instance of the aggrieved party to the suit or by the authority saddled with the legal responsibility of executing the preliminary decree, it would be justifiable, legal and proper. In a given case, there may be two preliminary decrees. Civil Court which has passed the earlier preliminary decree in such fact situation would be justified for said approach and passing of the subsequent preliminary decree in relation to suit properties. In such case, there is a clear determination of the rights of the parties to the suit on the question in controversy and I see no difficulty in holding that in such cases there is decree deciding these disputed rights.
So far partition suits are concerned I have no doubt in my mind, that subsequent event after passing of the preliminary decree may necessitate a change in the shares and the Court can and should do so, if there is a dispute in that behalf. The order of the Court, deciding that dispute and making variation in shares specified in the preliminary decree, already passed is a decree in itself which would be liable to an appeal. However while saying so it must be confined to the partition suits and in relation to parties belonging to Hindu religion.
Civil Procedure Code, 1908 - Civil Procedure Code, 1908 - Sections 2 (2) and 54 - Order XX, Rule 7 - Maharashtra Land Revenue Code, 1966 - Section 85 - Partition suit - Share of deceased - Claims in respect of - To be adjudicated upon by Civil Court, which earlier passed preliminary decree - Collector or Authority executing a preliminary decree under Section 54 of the CPC and under Section 85 of MLR Code not competent for such adjudication - Person holding decree by competent Civil Court entitled to seek its ultimate satisfaction in accordance with provisions of law. - Now, turning to the facts of the present case, it is indisputable that petitioner and respondents are disputing their claims in relation to share of deceased Shiubai. Such dispute has to be adjudicated upon by the Civil Court which has earlier passed the preliminary decree. The Collector, or the authority executing a preliminary decree under Section 54 of the Code and Section 85 of Maharashtra Land Revenue Code, cannot be said to be a competent authority for such adjudication. The Collector or the authority concerned, therefore, have to seek guidance or refer the precept to Civil Court for such resolution of dispute. The Civil Court may amend the earlier preliminary decree or pass fresh preliminary decree varying earlier determined shares in accordance with the provisions of law. A proposition that Civil Court, after passing of the preliminary decree, has no control over the decree, in the premises of three Judge Bench judgment of the Apex Court in the matter of Phoolchand (supra), cannot be accepted. In the case on hand, the trial Court, therefore ought to have adjudicated upon the claims of the parties and suitably modified and/or passed fresh preliminary decree.
A reference is also made to the order passed by the Appellate Court in Review Application. From the order it appears that the Appellate Court has referred to a judgment of the Apex Court in the matter of Khemchand (supra). The Appellate Court, while rejecting the review application, observed that the Collector has ample powers in view of citation i.e. AIR 1983 SC 124 and he should allot the share of the deceased after passing of the decree. Advocate for the Respondents Mr. Gaware submits that finality has been attributed so far as decision in Misc. Civil Application No. 5 of 2004 is concerned. However, I can not ignore the fact that preliminary decree passed by the trial Court is made final by the first Appellate Court in Regular Civil Appeal No. 269 of 1997. In this view of the matter, there is no impediment while considering this writ petition favorably, despite rejecting of Day Application No. 5 of 2004 (Review) by the first Appellate Court on 17th September, 2004. It cannot be ignored that the Col lector has sought a guidance from the Civil Court. Person holding decree by the competent Civil Court, in law is entitled to seek its ultimate satisfaction in accordance with provisions of law.
1. Heard learned counsel for the parties.
2. Rule. Rule made returnable forthwith and taken up for final hearing, with the consent of the parties.
3. This petition takes an exception to the judgment and order dated 30th August, 2005, passed by the learned Civil Judge, Junior Division, Karjat, district Ahmednagar, in Regular Darkhast No.20 of 2002.
4. The brief resume of facts would suffice. The Petitioner had filed Regular Civil Suit No.22 of 1981 for partition and separate possession of the suit properties. The suit came to be decreed by the trial Court, with costs. It was declared that the plaintiff was having 1/9th share in the suit property. Separate inquiry was directed under Order XX Rule 12 of the Code of Civil Procedure [hereinafter referred as the Code, for short]. Preliminary decree, thus, was passed. Further direction was issued to send the precept to Collector for effecting partition. The decree seems to have been passed by the learned Civil Judge, Junior Division, Karjat on 4th July, 1997. This decree was subject matter of Regular Civil Appeal No.269 of 1997 before the District Judge, Ahmednagar, at the instance of some of the defendants. In Regular Civil Appeal No.269 of 1997 Smt. Shiubai Madhav Gangarde was Appellant No.3. Said Shiubai was original defendant No.3. Smt. Shiubai died on 22nd April, 1998 i.e. during the pendency of Regular Civil Appeal No.269 of 1997. Regular Civil Appeal No.269 of 1997 came to be dismissed on 22nd April, 2004. The original plaintiff/ Petitioner in this writ petition, filed Misc. Civil Application for review under Order XLVII Rule 1 read with sections 151 and 152 of the Code, in the Court of learned District Judge, Ahmednagar which, after hearing all the parties, came to be dismissed by the judgment and order dated 17th September, 2004. The decree passed in Regular Civil Suit No.22 of 1981 was put into execution. The District Collector, Ahmednagar, by the letter dated 26th April, 2005, addressed to the learned Civil Judge, Junior Division, Karjat sought guidance. Said letter is in Execution Petition No.20 of 2002 pending before the Executing Court at Exhibit-37. The petitioner had also filed application Exhibit-17 in Regular Darkhast No.20 of 2002. In this application, petitioner sought injunction against defendant Nos.2, 7 and 8 regarding removal of earth from land Gat No.219 and part of land Gat No.61 as detailed in that application. This application seems to have been filed on 17th March, 2005. Learned Civil Judge, Junior Division, Karjat passed common order below Exhibit-17 as well as below Exhibit-1 in Regular Darkhast No.20 of 2002 since he had also received letter from the District Collector, Ahmednagar seeking guidance regarding execution of the decree passed in Regular Civil Suit No.22 of 1981. Learned Civil Judge, Junior Division directed the District Collector or Gazetted Officer to complete the partition proceeding in the light of decree and as per section 54 of the Code and section 85 of The Maharashtra Land Revenue Code, 1966 as soon as possible. It was also informed that no guidelines can be issued from the Court in respect of partition as he is empowered to deal with situation according to law. Application Exhibit-17 came to be allowed and contesting Judgment Debtor Nos.1, 2, 7 and 8 are restrained from carrying out any type of activity causing damages to the suit property under partition till the partition proceeding is finalised. The petitioner is partly aggrieved by this order, more specifically item No.2 of the operative part of the order.
5. On behalf of the respondents, affidavit in reply is filed. It is sworn in by Mr. Popat Gangarde. Death of defendant No.3 Shiubai during the pendency of Regular Civil Appeal No.269 of 1997, on 22nd April, 1998, is stated. Filing of the Day Application No.5 of 2004, by the Petitioner and rejection thereof is also averred. Copy of this application is annexed with the reply affidavit. Reference is made to the judgmen
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