Case Note & Summary
The case arises from a partition suit (Special Civil Suit No. 80 of 1969) filed by the respondents against the petitioner. A decree for partition was passed by the Civil Judge, Senior Division, Nashik, declaring that the petitioner and respondent nos.1 and 2 each have a 5/16 share and respondent no.3 has a 1/16 share in the suit property, which consists of agricultural lands. In execution proceedings (Execution No. 13 of 1977), the decree was sent to the Collector for effecting partition vide order dated 7th April 1977. The Collector effected the partition and possession was delivered to the respective holders. On 24th June 1999, the heir of respondent no.1 made an application to the executing court alleging that respondent nos.2 and 3 had not taken possession of their allotted portion. The executing court allowed that application and directed re-delivery of possession. The petitioner challenged this order by way of a writ petition before the Bombay High Court. The High Court held that once the Collector has effected partition and possession has been delivered, the executing court cannot entertain an application for re-delivery of possession or re-open the partition. The executing court's jurisdiction under Section 47 of the Code of Civil Procedure, 1908 is limited to executing the decree as it stands. Any dispute regarding possession after execution must be raised in a separate suit. Accordingly, the High Court allowed the writ petition and set aside the impugned order.
Headnote
A) Civil Procedure - Execution of Decree - Section 47 Code of Civil Procedure, 1908 - Jurisdiction of Executing Court - Once a decree for partition is executed by the Collector and possession is delivered to the parties, the executing court cannot entertain an application for re-delivery of possession or re-open the partition. The executing court's role is limited to executing the decree as it stands, and any dispute regarding possession after execution must be raised in a separate suit. (Paras 1-3)
Issue of Consideration
Whether the executing court can entertain an application for re-delivery of possession after the Collector has already effected partition and possession has been delivered to the parties.
Final Decision
The High Court allowed the writ petition and set aside the impugned order of the executing court dated 24th June 1999.
Law Points
- Execution of decree
- partition decree
- jurisdiction of executing court
- Section 47 CPC
- finality of partition by Collector
Case Details
2011 LawText (BOM) (07) 1975
Writ Petition No. 5137 of 2000
Mr. P.S. Dani for the petitioners, Mr. V.S. Gokhale for respondent nos.1A to 1D
Nana Govind Bhadke (since deceased) through his heirs and legal representatives: Smt. Janabai Nana Bhadke, Madhukar Nana Bhadke, Dinkar Nana Bhadke, Prabhakar Nane Bhadke, Ratnakar Nana Bhadke, Sou. Rajana Surendra Kale, Sou. Seema Ratnakar Barde, Bharati Madhukar (Suresh) Mali
Shankar Govind Bhadke (since deceased) through his heirs and legal representatives: Laxman Shankar Bhadke, Smt. Geetabai Shankar Bhadke, Pandurang Shankar Bhadke, Smt. Kamlabai Dhanjai Jejurkar; Kacharu Govind Bhadke (since deceased) through his heirs and legal representatives: Smt. Krishnabai Kacharu Bhadke, Shivaji Kacharu Bhadke, Namdeo Kacharu Bhadke, Suresh Kacharu Bhadke; Manjula Balu Mandlik
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Nature of Litigation
Writ petition challenging an order of the executing court directing re-delivery of possession in a partition suit.
Remedy Sought
The petitioners sought to set aside the order of the executing court dated 24th June 1999 which directed re-delivery of possession to respondent nos.2 and 3.
Filing Reason
The petitioners contended that the executing court had no jurisdiction to entertain the application for re-delivery of possession after the Collector had already effected partition and possession was delivered.
Previous Decisions
A decree for partition was passed in Special Civil Suit No. 80 of 1969. In execution proceedings, the decree was sent to the Collector for effecting partition vide order dated 7th April 1977. The Collector effected partition and possession was delivered. On 24th June 1999, the executing court allowed an application for re-delivery of possession.
Issues
Whether the executing court can entertain an application for re-delivery of possession after the Collector has already effected partition and possession has been delivered.
Submissions/Arguments
The petitioners argued that once the Collector has effected partition and possession has been delivered, the executing court cannot entertain an application for re-delivery of possession or re-open the partition.
Ratio Decidendi
The executing court's jurisdiction under Section 47 of the Code of Civil Procedure, 1908 is limited to executing the decree as it stands. Once the Collector has effected partition and possession has been delivered, the executing court cannot entertain an application for re-delivery of possession or re-open the partition. Any dispute regarding possession after execution must be raised in a separate suit.
Judgment Excerpts
In a suit for partition (Special Civil Suit No. 80 of 1969) filed by respondent nos.1, 2 and respondent no.3, a decree for partition was passed against the petitioner...
It appears that the Collector effected the partition and possession was also delivered to the respective holders.
In my view, once the Collector has effected the partition and possession has been delivered to the respective parties, the executing court cannot entertain an application for re-delivery of possession or re-open the partition.
Procedural History
The respondents filed Special Civil Suit No. 80 of 1969 for partition. A decree was passed. In Execution No. 13 of 1977, the decree was sent to the Collector for effecting partition on 7th April 1977. The Collector effected partition and possession was delivered. On 24th June 1999, the executing court allowed an application for re-delivery of possession. The petitioners filed Writ Petition No. 5137 of 2000 challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908: Section 47
