1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.8466 OF 2005 Hammatlal Lalubhai Dukan, Malegaon, through its owner Navinchandra Himmatlal Bhate (Shah), Age 80 years, Occ.Trader, R/o Malegaon, Dist. Nashik. ... Petitioner. Versus Mastan Noor Mohamad and brothers shop, Malegaon through its owners : Mastan Noor Mohamad Musalman and others ... Respondents. ... Mr.L.V.Sangiit, advocate for the petitioner. Mr.D.V.Tele, A.G.P. for the Respondent No.8. Respondent Nos.1 and 2 served. Respondent Nos.3,4 and 7 deleted. ... CORAM : V.R.KINGAONKAR,J. Date : 16.06.2009. PER COURT 1. Rule. Rule made returnable forthwith 2 and heard finally. 2. The petitioner is original plaintiff/decree holder. He filed R.D.No.59/1969 seeking execution of the decree for partition. While the decree was pending for execution, he urged the Executing Court to direct the Collector to execute the decree within reasonable time. He pointed out that 25 reminders were issued by the Executing Court since 14.7.1972 onwards, yet, no action was taken. He further submitted that the decree was sent to the Collector in 1970 and is still unexecuted. He urged to initiate Contempt proceedings against the Collector. 3. The learned Civil Judge passed order as below : . "Execution proceeding are forwarded to the Collector U/s of C.P.C., long back prior to 1969 once the proceeding are initiated before the Collector. This Court becomes functiotious official and could not have jurisdiction to entertain any application in execution proceeding involving agricultural lands. 3 Hence, execution petition is disposed of D.H. to take necessary steps before the Collector." 4. Though served, the Respondent Nos.1 and 2 are absent. 5. Heard learned counsel Mr.Sangit for the petitioners and Mr.Tele, learned A.G.P. for the State. 6. No reply affidavit is filed to explain as to why there was delay in execution of the decree for partition. 7. The impugned order reveals that the learned Civil Judge did not understand precious legal position available to the Executing Court as Supervisory Authority in the matter of execution of the decree. It is explicit from plain reading of Section 54 of the C.P.C. that the Collector is required to execute the decree of partition of undivided estate assessed to the payment of revenue to the Government. The separation of share is required to be made by the Collector or any subordinate Gazetted Officer deputed by him. That does not mean abdication of the authority of the Executing Court. The 4 learned Civil Judge committed patent error while holding that the Court became functus officio and had no jurisdiction to entertain the applications of the decree holder. The Court has power to examine whether the execution is properly effected and whether the division of the shares is in accordance with the directions of the Court under the decree. The impugned order reveals lack of application of judicial mind. Consequently, it is unsustainable. 8. In the result, the petition is allowed. The impugned order is quashed. The Darkhast Application is restored to its original position with direction that the learned Civil Judge shall call upon the concerned Collector to execute the decree without any further delay. The Collector shall thereafter make sincere endeavour to execute the decree without any further delay. If the directions of the Executing Court are not complied with then the Executing Court would be at liberty to take coercive steps. 9. Rule made absolute accordingly. The 5 Petition is disposed of. (V.R.KINGAONKAR,J.) asp/office/wp846605