1 wp3555-06 caw1297-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 3555 OF 2006 WITH CIVIL APPLICATION NO. 1297 OF 2011 IN CIVIL WRIT PETITION NO. 3555 OF 2006 Pralhad Shankar Tejale and others .. Petitioners Versus Gaubai Damodhar Tejale and others ... Respondents Mr. R. D. Soni i/by Ram & Co. for the petitioners Mr. Uday P. Warunjikar for respondent Nos. 1, 3 and 5 CORAM : R. Y. GANOO, J. DATED : 21st October, 2011 P.C. 1. Rule. Rule made returnable forthwith. Mr. Warunjikar waives service on behalf of respondent Nos. 1, 3 and 5 who are the contesting respondents. By consent, the petition is taken up for hearing. 2. The decree passed by the learned Civil Judge, Junior Divsion, Nashik in Regular Civil Suit No. 406 of 1914 is under process. It is noticed that number of proceedings have taken place. It is also noticed that learned Judge, who is controlling the said matter has already sent the papers to the Collector, Nashik as per Section 54 of the Code of Civil Procedure for giving his report. The said matter is now pending in the office of the Collector, Nashik. By this time, the 2 wp3555-06 caw1297-11 respondents filed an application in the Court which was titled as Final Decree No.1 of 1994. That application came to be opposed by the present petitioners and the learned Joint Civil Judge, Junior Division passed the order on 31st August, 2004, text of which is as follows: i. Decree be sent to the Collector Nashik for effecting Partition as per the decree passed in Regular Civil Suit No. 406 of 1994 in Regular Civil Suit No. 406 of 1914 and Regular Civil Suit No. 68 of 1977 and order passed by the Honourable High Cour,t Bombay in Writ Petition no. 2802 of 1998 under Section54 of the Civil Procedure Code. ii. The Applicants shall submit fresh 7x12 extract of decreetal land. iii. The certified copies of the judgment passed in Regular Civil Suit No. 406 of 1994 and Regular Civil Suit No. 68 of 1977 and Writ Petition No. 2802 of 1998 be sent to the collector. iv. The applicants shall submit the certified copies of the aforesaid judgments.” This order dated 31st August, 2004 is challenged in this petition. 3. Looking to the provisions of Civil Procedure Code as regards passing of decree in Partition Suit and execution thereof, it is clear that the view taken by the learned Joint Civil Judge , Junior Division Nashik is not correct. Final Decree Application No.1 of 1994 filed in his Court could not have been treated by him as execution of decree because the collector Nashik has yet to send his report. As per the provisions of Civil procedure Code in a Suit for partition, 3 wp3555-06 caw1297-11 first a final decree has to be passed by the Court after the collector sends his report as per Section 54 of Civil Procedure Code. After passing said final decree, the same can be put into execution by filing execution application. This court was informed that in Writ Petition No. 6683 of 2007, the petitioners therein, who are equally the petitioners herein, submitted to the Court that they may be permitted to withdraw the said Writ Petition and accordingly the petition was allowed to be withdrawn. In addition to the grant of withdrawal of the petition the petitioners were permitted to file an application in the trial Court for leading additional evidence. It was the stand of the petitioners while opposing the application on which the impugned order is passed that the execution of decree is barred by law of limitation. In view of the order passed in Writ Petition No. 6683 of 2007 said stand could not be taken. It is clear that the petitioners have given up that by their conduct viz. Obtaining liberty to adduce additional evidence in the Court. It is noted that by taking the benefit of the said liberty, the application has not been filed. Learned Advocate Mr. Soni stated across the bar that the said application could not be filed as the papers are with the Collector, Nashik. Be that as it may, unless the collector gives report under section 54, there is no question of requesting the Court to pass final decree. 4. With the aforesaid discussion, the impugned order will have to be set aside and in its place the following order will have to be passed and accordingly the same is passed to dispose of the petition. 4 wp3555-06 caw1297-11 i. After the report is received form the Collector, Nashik, if at all the petitioners are interested in using the liberty granted to them vide order dated 24th June, 2010 in Writ Petition no. 6683 of 2007, the petitioners are free to file such an application in the Court. If at all such application is filed, the same shall be disposed of on merits, as expeditiously as possible. ii. The Collector, Nashik is directed to take urgent steps to finalize his report and submit the said report along with the record to the Court of Civil Judge, Junior Division Nashik, as expeditiously as possible and in any event by the end of 31st December, 2011. iii. It is clarified that the observation made by the learned Judge in the order dated 31st August, 2004 shall not be used at any time. iv. Needless to mention that unless the report of the Collector is received by the Court and court passes final decree, there is no question of dividing the land into pieces. v. Interim orders if any stand vacated in view of this order. vi. There shall be no order as to costs. 5. In view of the above order Civil Application No. 1297 of 2011 stands disposed of. (R. Y. GANOO, J.)