The main legal point established in the judgment is the limitation of the Civil Court's power in executing partition and delivering possession in cases of partition of agricultural land, as clarified by the legal principles outlined in the judgments referenced by the court.

ORDER

1. This miscellaneous petition has been preferred by petitioners /defendants 1-2/judgment debtors challenging order dtd. 07.08.2023 (Annexure P/8) passed by 1st Civil Judge Senior Division, Chhindwara in execution case no.1/2023 whereby executing Court has dismissed petitioners' application under Section 47 r/w Section 151 CPC and has directed issuance of warrant of possession against the petitioners (Smt. Ushabai and Smt. Rukmanibai).

2. In the civil suit filed by respondents/plaintiffs, trial Court passed following decree. Last para of judgment dtd. 07.08.2009 passed by trial Court reads as under :

3. Aforesaid judgment and decree of trial Court was modified by first appellate Court vide its judgment and decree dtd. 25.02.2013, last para of which reads as under :

4. Learned counsel for petitioners submits that by passing judgment and decree on 25.02.2013, 1st Additional District Judge, Chhindwara, in civil appeal no.30-A/12 modified judgment and decree dated 07.08.2009 passed by trial Court in civil suit no.21-A/08, but executing Court without taking into consideration modified decree, has dismissed petitioners' application and ordered to issue warrant of possession even without specifying the suit property. He further submits that in pursuance of judgment and decree passed by first appellate Court on 25.02.2013, no partition has taken place and until and unless partition takes place in pursuance of judgment and decree 25.02.2013, executing Court has no jurisdiction over the matter. He also submits that in pursuance of judgment and decree dated 25.02.2013, executing Court is bound to send the requisite documents to revenue Court in view of Section 54 of the CPC but this exercise has not been undertaken by executing Court.

5. Shri Oberoi, learned counsel for the respondents 1-6 by placing reliance on order dated 17.04.2014 passed in case no.203/A-6(A)/2010-2011 by Tahsildar, Chhindwara, submits that in pursuance of judgment and decree dated 25.02.2013 partition has already taken place and executing Court only after taking into consideration order dated 17.04.2014 passed by Tahsildar, ordered to issue warrant of possession. Accordingly, he submits that there is no illegality in the impugned order and prays for dismissal of misc. petition.

6. Heard learned counsel for the parties and perused the record as well as impugned order.

7. Perusal of impugned order shows that in its order executing Court has just mentioned arguments of the parties and at the end rejected application under Section 47 r/w Section 151 CPC filed by the petitioners even without taking into consideration effect of modified judgment and decree dated 25.02.2013 passed by first appellate Court so also effect of Tahsildar's order dated 17.04.2014 relied upon by counsel for the respondents 1-6, and consequently ordered for issuance of warrant of possession. Impugned order also does not indicate as to in respect of which property, warrant of possession has been directed to be issued. In the entire order, executing Court has also not mentioned as to whether after judgment and decree passed by first appellate Court on 25.02.2013, any partition has taken place or not.

8. In the case of Kunhayammed and others vs. State of Kerala and another (2000) 6 SCC 359, the Supreme Court has held as under:-

'43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.

44. To sum up our conclusions are :-

(i) Where an appeal or revision is provided against an order passed by a Court, tribunal or any other authority before superior forum and suc