The matter has been placed before this Bench in view of the order dated 12.05.2009 passed by a Division Bench referring the ques­tion of scope of Section 54 CPC in relation to executability of a Civil Court decree for partition of undivided estate by Collector to larger Bench. One of the issues referred is whether the term 'estates' includes any piece of land in which case there may be conflict between Order 21 and Section 54 CPC. The reference order is as follows:

"...Apart from the individual rights of the parties, i.e., the decree-holders and the judg­ment debtors, in our view, the question arises for determination is whether a decree for parti­tion of properties passed by a competent Civil Court can be executed by the revenue authori­ties acting under the provisions of Assam Land and Revenue Regulation, 1886.

Reliance is placed on Section 54 of the Code of Civil Procedure read with Chapter VI of the Assam Land and Revenue Regulation, 1886.

Section 54 of the Code of Civil Procedure deals with the partition of revenue paying es­tate, which read as follows:

"54. 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 sub-ordinate of the Collector deputed by him in this be­half, in accordance with law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates."

Neither the expression "estate" or "rev­enue" paying estate" is defined under the Code of Civil Procedure. Chapter VI of the Land and Revenue Regulation, 1886 deals with partition relating to revenue paying estate. The expres­sion "estate" itself is defined in Section 3 (v) (b) of the abovementioned Regulation.

The expression "estate" occuring in Sec­tion 54 came up for consideration in various High Courts. The earliest decision in this re­gard appears to be that of the Madras High Court reported in (1884) ILR 7 Mad 3 82 (Muttu Chidambara Vs. Karuppa). A Full Bench of the Madras High Court consisting of five Judges hold that the expression "estate" occurring in Section 265 of the Code of Civil Procedure did not include ryotwari holdings and therefore, not amenable to the power under Section 54 of the Code of Civil Procedure. Similar views were ex­pressed in AIR 1953 Pun250: Rameshwar Nath Vs. Jogeshwar Nath & Ors., AIR (39) 1952 Allahabad 191: Ram Khelawan Vs. Sri. Ram & Ors. and also in another judgment reported in AIR (32) 1945 Calcutta 28 : Priyanath Roy Vs. Sreedhar Chandra Roy & Ors. Order 21 of the Code of Civil Procedure pre­scribes a procedure for execution of decree re­lating to movable and immovable properties. If the term "estate" occurring in Section 54 of the Code of Civil Procedure includes any piece of land, in our view, the provision of the Order 21 of the Code of Civil Procedure would become redundant. In the circumstances, in our view, the question now arises is as to what is the meaning to be given to the word to the expres­sion "estate" occurring in Section 54 of the Code of Civil procedure, requires an authoritative pro­nouncement.

We are conscious of the fact that the Code of Civil Procedure is that subject confers with the concurrent of the Legislatures, both Parlia­mentary as well as State Legislature. The State Legislature adopts the Code of Civil Procedure by following pre-constitutional procedure and due weightage be given to the procedure pre­scribed therein. The Assam Land and Revenue Regulation, 1886 is a pre-Constitutional Law whereas, the Code of Civil Procedure though is a pre-Constitutional law, it has got past Consti­tutional amendment. Undoubtedly, the prescrip­tion provided in the Assam Land and Revenue Regulation, 1886 relating to partition is a long established practice in the State of Assam. Theref