1 cra1077-02-j. rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.1077 OF 2002 Jagdeorao Babasaheb Nigade- Deshmukh (Since deceased through his LR's) Chandrakant Jagdeorao Nigade- Deshmukh & Ors. .. Applicants V/s. Malharrao Nanasaheb Nigade- Deshmukh (Since deceased through his LR's) Vinod Malhaarao Deshmukh & Ors. .. Respondents ...... Mr. P. J. Shinde for the applicants. Mr. Rahul S. Kate for respondent No.2A to 2D. ...... CORAM : A.S.OKA, J. DATE : MARCH 3, 2011 ORAL JUDGMENT :- Heard the learned counsel appearing for the parties. The Revision Applicants who are the decree holders have challenged the Judgment and Order dated 12th February, 2001, passed by the executing Court in Execution Application no. 38 of 2 cra1077-02-j. 1985 filed by the applicants. 2. The execution is for the decree passed in Special Civil Suit No.11 of 1967. The prayer in the said suit was for reopening the partition made on 7th May, 1955 and for 1/3rd share in the ancestral property. According to the case of the revision applicants, the prayer of reopening of partition was not granted, but, the applicant was held entitled to recover possession of his 1/3rd share in the lands bearing survey No.28/2, 29/2 and 32/6 from the respondents. It appears that execution application No.18 of 1980, was filed by the revision applicants for executing the said decree. By order dated 30th January, 1982, the executing Court disposed of the said execution application. While rejecting the prayer for execution of the decree as against respondent No. 2 in respect of aforesaid three survey numbers, as regards the other lands, papers were ordered to be sent to the Collector for effecting partition. 3. In the year 1985, the revision applicants filed another execution application being application No.38 of 1985 for executing the same decree. An application at exhibit 81 was made by the 3 cra1077-02-j. second respondent in the said execution application for excluding the aforesaid three survey numbers from the execution and for deleting the name of the second respondent. By the impugned order, the application at Exhibit 81 was allowed and the execution application was disposed of. 4. The learned counsel appearing for the revision applicants relied upon the decisions of this Court in the case of Annasaheb Rajaram Nagane & Anr. vs. Rajaram Maruti Nagane & Ors [ 2001 (3)Mh.L.J. Page 53] and Ramabai Govind vs Anant Daji [A.I.R. 1945 Bombay 338]. He submitted that in fact, it was not necessary for the applicants to file execution application and the Court was bound to pass an order under Section 54 of the Code of Civil Procedure, 1908, for sending the papers to Revenue Authorities for effecting partition. He submitted that the executing Court could not have deleted the aforesaid three survey numbers and hence the impugned order is illegal. The learned counsel appearing for the legal representatives of respondent No.2 supported the impugned order. 4 cra1077-02-j. 5. I have given careful consideration to the submissions. Admittedly, applicants filed Special Darkhast No.18 of 1980 for executing the same decree passed in suit No.11 of 1967. By order dated 30th January, 1982, the said execution application was disposed of by rejecting the prayer of the applicants for execution of the decree against the second defendant in respect of the aforesaid three survey numbers. Rest of the decree was sent to the Collector to effect partition. The said order is still operative and has not been challenged till today. 6. In the light of filing of the earlier execution application, in fact, the applicants could not have filed second execution application. There are some legal submissions made by the learned counsel appearing for the applicants. However, the second execution application filed by the applicants could not have been entertained in the light of filing of the first execution application and the order passed thereon. In fact, the trial Court could not have gone in to the merits of application at Exhibit 81 filed in the second execution application as the second application for execution could not have been entertained. 5 cra1077-02-j. 7. The issue whether executing Court can direct that the decree cannot be executed in respect of certain properties need not be decided in the present revision application and the said issue is kept open. However, the final order passed of disposing of Special Darkhast No.38 of 1985 will have to be upheld. Subject to what is observed above, there is no merit in the Civil Revision Application and the same is rejected. Rule is accordingly disposed of with no order as to costs. JUDGE