Bombay High Court Allows Writ Petition, Sets Aside Executing Court Order Declining Injunction Due to Functus Officio. Executing Court Retains Jurisdiction Under Section 47 CPC Even After Sending Precept to Collector for Partition, Can Grant Ancillary Reliefs.

Execution proceedings in a partition decree, where the decree-holder sought temporary injunction to restrain construction on suit property pending partition by Collector, and the executing court declined to entertain the application on the ground that it became functus officio after sending the precept.

The petitioner sought to recall the order dated 31st January, 2023 and obtain a temporary injunction restraining parties from construction activity on the suit premises till partition is effected by the Collector, and direction to police to remove men and machinery.

The executing court rejected the application for recall and injunction on the ground that it had become functus officio after sending the precept to the Collector for partition.

Earlier, the executing court had sent precept to Collector on 5th May 2001; on 31st January 2023, it directed Collector to execute precept; that order was challenged in Writ Petition No. 5741 of 2023, which was disposed with directions to Collector to effect partition within three months after hearing all parties, and that the order dated 31st January 2023 did not determine substantive rights.

Whether the Executing Court becomes functus officio for all intents and purposes once a precept is sent to the District Collector for effecting partition in respect of lands assessed to revenue?

Petitioner argued that the executing court erred in holding itself functus officio; under Section 47 and Order XXI Rule 18 CPC, it retains jurisdiction to grant ancillary reliefs like temporary injunction to preserve property until partition by metes and bounds, and that no co-sharer can sell or construct on a specific portion until actual division. Respondents argued that the application was mala fide, identical prayers were rejected in a previous review petition before the High Court, the petitioner’s conduct disentitled him to equitable relief as portions were already sold, and most purchasers were not before the court; also Survey No. 89 was excluded from partition yet included in prayers, and certain documents were not genuine.

The executing court does not become functus officio upon sending a precept to the Collector for partition of revenue land under Section 54 and Order XX Rule 18(1) CPC; it retains jurisdiction under Section 47 to determine all questions relating to execution, discharge, or satisfaction of the decree and can grant ancillary reliefs such as temporary injunction to preserve the suit property pending partition by the Collector.

The core controversy that arises for consideration is, whether the Executing Court becomes functus officio for all intent and purpose once a precept is sent to the District Collector for effecting partition in respect of lands assessed to revenue? For the foregoing reasons, it is evident that the Executing Court was in error in rejecting the applications for recall of the order dated 31st January, 2023 and reopening the execution proceedings ... solely on the premise that the Executing Court had become functus officio.

The suit for administration and partition (RCS No. 102 of 1963) was decreed on 29 August 1968. Execution proceedings (Regular Darkhast No. 23 of 1981) were initiated. On 5 May 2001, the executing court sent a precept to the Collector, Nashik, for partition of agricultural land. On 31 January 2023, the executing court directed the Collector to execute the precept and effect partition. That order was challenged in Writ Petition No. 5741 of 2023, which was disposed with a direction to the Collector to complete partition after hearing all parties within three months, and clarifying that the 2023 order did not determine substantive rights. The Collector had not yet effected partition. The decree-holder’s legal representative filed applications before the executing court to recall the 2023 order and for temporary injunction to restrain construction on the suit property. By order dated 20 April 2026, the executing court dismissed the applications on the ground that it became functus officio after sending the precept. The petitioners challenged this order in the present writ petitions.

• Code of Civil Procedure, 1908: Section 47, Section 54, Order XX Rule 18(1), Order XXI Rule 18