Case Note & Summary
The case involves a decree-holder (sister) who obtained a preliminary decree for partition of her parents' property in 2006, which was confirmed in appeals up to the Supreme Court in 2021. She filed an execution petition in 2020, and the Civil Court sent a precept under Section 54 CPC to the Collector for partition by metes and bounds. The Collector forwarded it to the Tahsildar, who initiated proceedings and issued a letter on 02.06.2023 directing the Circle Inspector to effect partition. The petitioners (brothers and others) challenged this letter, arguing that no notice or hearing was given before preparing the partition chart, and that a final decree was necessary before actual partition. They also contended that the procedure under the Maharashtra Land Revenue Code, 1966 and Rules was not followed. The respondents argued that notices were served, the petitioners were present during measurement, and the proceeding was ongoing, allowing objections under Rule 7. The court examined the requirement of a final decree under Section 54 CPC and held that the Collector can effect partition without a final decree, as the precept empowers the Collector to execute the decree. The court also found no violation of natural justice as the petitioners had opportunity to raise objections. The petition was dismissed, and the Tahsildar was directed to proceed with partition after hearing all parties.
Headnote
A) Civil Procedure - Execution of Decree - Partition under Section 54 CPC - Final Decree Requirement - The court considered whether a final decree is necessary before the Collector can effect partition under Section 54 CPC. Held that the precept under Section 54 CPC empowers the Collector to effect partition without a final decree, as the decree-holder is entitled to execution of the preliminary decree through the Collector's machinery. (Paras 14-16)
B) Civil Procedure - Execution of Decree - Natural Justice - Notice and Hearing - The petitioners contended that no notice was given before preparation of partition chart. The court noted that notices for measurement were served and the petitioners had opportunity to raise objections before the Tahsildar under Rule 7 of the Maharashtra Land Revenue (Partition of Holdings) Rules, 1967. Held that there was no violation of natural justice as the proceeding was not concluded. (Paras 6-7, 12, 16)
C) Maharashtra Land Revenue Code, 1966 - Partition of Holdings - Section 85 and Rules 5,6,7,9 - The court examined whether the Tahsildar followed the procedure under the Code and Rules. Held that the Tahsildar acted in accordance with the precept and the directions of the S.D.O., and the petitioners' objections could be raised before the Tahsildar. (Paras 4-7, 16)
Issue of Consideration
Whether the Collector can effect partition under Section 54 CPC without a final decree being drawn, and whether the procedure adopted by the Tahsildar violated principles of natural justice.
Final Decision
The writ petition is dismissed. The Tahsildar is directed to proceed with the partition after hearing all parties concerned, in accordance with law.
Law Points
- Execution of decree
- Partition under Section 54 CPC
- Final decree not prerequisite for Collector's action
- Natural justice
- Maharashtra Land Revenue Code 1966 Section 85
- Maharashtra Land Revenue (Partition of Holdings) Rules 1967 Rules 5
- 6
- 7
- 9
Case Details
2024 Lawtext (BOM) (5) 113
Writ Petition No. 2023 of 2023
Mr. V. D. Sapkal, Senior Advocate instructed by Mr. S. R. Sapkal and Mr. A. B. Hawale, Advocates; Mr. P. D. Patil, A.G.P. for Respondents No.1 to 5; Mr. R. N. Dhorde, Senior Advocate instructed by Mr. A. C. Darandale, Advocate for Respondents No.6A to 6C
Sadashiv s/o. Barku @ Barikrao Kshirsagar Ors.
The State of Maharashtra, Through its Secretary Ors.
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Nature of Litigation
Writ petition challenging the Tahsildar's letter directing partition and delivery of possession in execution of a decree.
Remedy Sought
Petitioners sought to quash the Tahsildar's letter dated 02.06.2023 and to restrain the respondents from effecting partition without following due procedure.
Filing Reason
Petitioners alleged that the partition chart was prepared without notice or hearing, and that a final decree was necessary before actual partition.
Previous Decisions
A partition suit was decreed in 2006, First Appeal dismissed in 2017, Second Appeal dismissed in 2021. Execution petition filed in 2020. Precept under Section 54 CPC sent to Collector. S.D.O. directed Tahsildar to act under Section 85(2) of the Code, 1966.
Issues
Whether the Collector can effect partition under Section 54 CPC without a final decree being drawn?
Whether the procedure adopted by the Tahsildar violated principles of natural justice?
Submissions/Arguments
Petitioners argued that no notice or hearing was given before preparing partition chart, and that a final decree is necessary before actual partition. They relied on Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande.
Respondents argued that notices were served, petitioners were present during measurement, and the proceeding was ongoing, allowing objections under Rule 7. They relied on Shub Karan Bubna v. Sita Saran Bubna.
Ratio Decidendi
Under Section 54 CPC, the Collector can effect partition without a final decree being drawn, as the precept empowers the Collector to execute the decree. The decree-holder is entitled to execution through the Collector's machinery. The petitioners had opportunity to raise objections before the Tahsildar, and the proceeding was not concluded, so no violation of natural justice.
Judgment Excerpts
The question is, can Collector effect the partition as per the precept sent to him under Section 54 of the C.P.C. without final decree ?
The Hon'ble Supreme Court, in a case Shub Karan (supra) ... held that once the rights of the shares of the plaintiffs had finally been determined by the preliminary decree, there is no limitation for an application for effecting the actual partition/division in accordance with the preliminary decree.
Procedural History
Partition suit decreed in 2006. First Appeal dismissed in 2017. Second Appeal dismissed in 2021. Execution petition filed in 2020. Precept under Section 54 CPC sent to Collector. S.D.O. directed Tahsildar to act under Section 85(2) of the Code, 1966. Tahsildar issued letter on 02.06.2023 directing partition. Petitioners filed writ petition challenging that letter.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 54
- Maharashtra Land Revenue Code, 1966: Section 85, Section 85(2), Section 85(3)
- Maharashtra Land Revenue (Partition of Holdings) Rules, 1967: Rules 5, 6, 7, 9
- Prevention of Fragmentation and Consolidation of Holdings Act:
