1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Writ Petition No. 5003 of 2007 (Jageshwar Mahadeo Padole Vs. Smt. Satyabhamabai wd/o Dnyaneshwar Padole & ors.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. A. Z. Jibhkate, Adv. For petitioner. Mr. M.G. Salov, Adv. For R-1 and 2. CORAM : Smt. Vasanti A. Naik, J. DATE : 6 th October, 2008 By the instant petition, the petitioner impugns the order passed by the Civil Judge, Sr. Dn., Bhandara, on 23/8/2007, allowing the application filed by the respondents for sending the precept to the Collector, Bhandara, for effecting the partition of agricultural lands. The respondent nos. 1 and 2 had filed a suit for partition and separate possession. The suit was decreed and a preliminary decree was passed. In pursuance of the decree, the respondent nos. 1 and 2 filed an application under Section 54 read with Order XX, Rule 18 of the Code of Civil Procedure to issue precept to the Collector for partition and possession of agricultural land. The petitioner 2 opposed the said application on the basis of certain document allegedly executed by the respondent nos. 1 and 2 and the petitioner, on 23/12/2003. According to the petitioner, by the compromise dated 23/12/2003, there was an adjustment of the claim between the parties and the application for sending the precept to the Collector was liable to be rejected. The application filed by the respondent nos. 1 and 2 was, however, allowed by the impugned order dated 23/8/2007. Shri Jibhkate, the learned counsel for the petitioner, submitted that the Civil Judge, Sr. Dn., Bhandara, was not justified in allowing the application filed by the respondent nos. 1 and 2, as there was an adjustment of the decree in terms of the provisions of Order XXI Rule 2 of the Code of Civil Procedure. The counsel for the petitioner submitted that the respondents could not have applied for sending a precept to the Collector, after they entered into a compromise with the petitioner on 23/12/2003. The counsel for the petitioner relied on the decision reported in AIR 1948 Nagpur 38, to substantiate his submission. Shri Solov, the learned counsel for 3 the respondent nos. 1 and 2, supported the order passed by the Civil Judge, Sr. Dn., Bhandara, and submitted that the Court had rightly allowed the application of the respondents as it was not possible for the Court to give an overriding effect to the alleged mutual agreement, which was disputed, over the decree passed by the Court. I have considered the submissions made by the learned counsel and have also perused the impugned order dated 23/8/2007. The respondents had submitted before the Court that the alleged mutual compromise was sham and bogus and was not binding on the respondents. In this background, the Court rightly held that there was no adjustment of the decree between the parties and it cannot be said that the decree passed in favour of the respondents had been satisfied. The judgment reported in AIR 1948 Nagpur 35 is not applicable to the facts of the case, so also the provisions of Order XXI, Rule 2 C.P.C. would also not come into play as a payment or adjustment which has not been certified or recored in accordance with the provisions of sub-rule (1) of Rule 2 of Order XXI C.P.C., shall 4 not be recognized by any Court executing the decree. It is apparent from the record that the adjustment was not certified or recorded in accordance with the provisions of sub-rule (1) of Rule 2 of Order XXI of the Code of Civil Procedure. It was not only not certified and recorded, but it was also disputed by the respondents as according to the respondents, the alleged compromise was sham and bogus. In this view of the matter, the Civil Judge, Sr. Dn., Bhandara, had rightly held that the alleged mutual agreement which was disputed by the decree-holder could not have had an overriding effect over the decree passed by the Court. These observations of the Civil Judge, Sr. Dn., Bhandara, were in accordance with the provisions of sub-rule (3) of Rule 2 of Order XXI of the Code of Civil Procedure. For the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE RMP