kbp 1 2766-95.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBA CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2766 OF 1995 Pyarubai Sultanmal Katariya ..Petitioner Vs. Popatlal Ratanchand Borhane and ors. ..Respondents ......... Mr.Lagu h/f.Mr.R.S.Apte, for petitioner. Mr.Vivek Salunke i/b.Mr.P.B.Shah, for respondent no.1 ......... CORAM : A.S.OKA, J.. DATE : 12 th OCTOBER, 2009. JUDGMENT:- 1] This petition is placed on final hearing board. The submissions of the learned counsel for the parties were heard on 15 th September, 2009. The petitioner is the original decree holder. The first respondent is the judgment debtor no.3. This petition under Article 227 of the Constitution of India takes exception to the judgment and order dated 27 th April, 1995 passed by the learned Civil Judge Junior Division, Ghodegaon. A decree for partition and separate possession was passed in favour of the petitioner. As per Section 54 of the Code of Civil Procedure, 1908, the papers were sent to the Collector for effecting partition. According to the case of the petitioner, the decree was executed and the petitioner was placed in possession of his share. An application was made kbp 2 2766-95.sxw by the first respondent before the trial Court contending that the petitioner has unlawfully taken possession of the property falling to the share of the first respondent which was sold by the first respondent to the third parties. It is contended that the petitioner has taken over the possession of the area which exceeds his entitlement under the decree. The said application was contested by the petitioner by contending that the partition was already effected under the orders of the Collector, and thereafter, the execution application was disposed of by the trial Court. By the impugned order, the learned trial Judge has restored the Darkhast/execution application. 2] Learned counsel for the petitioner-decree holder submitted that the partition effected in accordance with Section 54 of the said Code of 1908 was not challenged by the first respondent. He submitted that as the decree for partition was governed by Section 54 of the said Code, after the execution of decree, the trial court could not have restored the execution application, and therefore, the impugned order is illegal. 3] Learned counsel for the first respondent relied upon a decision of this Court in the case of Mahadu Alias Mahadeo Baji Bhosale Vs. Appaji Gunbarao @ Ganpatrao Bhosale [2003(2)Mh.L.J.216] as well as a decision in the case of Dhansukhbhai Fakirbhai Patel Vs. Fakirbhai Dayabhai Patel and ors. dated 30 th September, 2005 in Second Appeal No.221 of 2004. He submitted that even in case of a decree which is governed by Section 54 of the said Code, after kbp 3 2766-95.sxw sending papers to the Collector, the Civil Court does not become functus-officio and the Court can always see whether the Collector has acted in accordance with the decree. He, therefore, submitted that the trial Court has exercised the said power and no interference is called for. 4] I have carefully considered the submissions. Perusal of the application made by the first respondent shows that following averments have been made therein:- (a) Papers were sent to the Collector, Pune, Tahsil Ghodegaon, for effecting partition. (b) The area of the share of a judgment debtor Gulabbai which was sold to third parties has been taken over by the petitioner through the Tahsildar, Ghodegaon. (c) The Petitioner has taken over possession of excess area than the area of the share coming him as per the decree. There is not even an allegation that while effecting the partition, the Collector or his sub-ordinate Officer acted contrary to the decree of partition. Even, while passing the impugned order, the learned trial Judge has not recorded a finding that there is any violation of the decretal mandate. The decisions relied upon by the first respondent lay down that after sending papers under Section 54 of the said Code, the Civil Court retains a very limited control which is to be exercised kbp 4 2766-95.sxw only if the Collector contravenes the decretal mandate or transgresses the law relating to partition. There are neither such allegations made by the first respondent nor such findings have been recorded by the trial Court. In the circumstances, the impugned order is completely illegal and deserves to be quashed and set aside. 5] Hence, I pass the following order:- (i) Rule is made absolute in terms of prayer clause “a”. (ii) There will be no order as to the costs. ( A.S.OKA, J. )