1 WP : 538/2003 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.538 OF 2003 Shri Hemakant Gurunath Ogale .... Petitioner Vs. Shri Nathu Daulati Bhanusghare .... Respondents & Ors. Mr. A.V. Anturkar, Advocate for petitioner. Mr. G.S. Godbole, Advocate for respondents 2 to 4. Coram : Smt. R.P.SondurBaldota, J. Date : 29th September, 2010 P.C. 1. This petition is filed under Article 227 of Constitution of India seeking quashing of the judgment and order dated 15th July 1999 passed by Civil Judge, Junior Division, Wadgaon Maval in Regular Darkhast No.2 of 1999, allowing the application at Exhibit 17 filed by the respondents. That application was filed by original defendant no.4 and defendant no.7 contending that the directions given in the judgment and order dated 20th February 1996 by the District Court, Pune in Civil Appeal No.419 of 1993 is contrary to the settled law and therefore the decree is a nullity. By the order dated 15th April 1999, the executing Court of Civil Judge, Junior Division, Wadgaon Maval upheld the preliminary objections to the execution proceedings and 2 WP : 538/2003 allowed the application at Exhibit 17 holding that the decree is not executable and consequently execution application is not tenable. 2. The brief facts of the case are that the original petitioner herein had purchased property admeasuring 1 Hectare, 1 R. out of the property at old survey no.63/3 (new gat No.218) on 4th March 1983 from original respondents no. 1 and 5 who undisputedly have 7/24th share in that property. The land at old survey no.63/3, gat nos. 217 and 218 being part of joint family property, the original petitioner filed Regular Civil Suit no.117 of 1999 for partition and separate possession. By the judgment and order dated 19th April 1993, the trial Court dismissed the suit. The original petitioner then preferred Civil Appeal No.415 of 1993 to the District Court, Pune. By the judgment and order dated 20th February 1996, the appeal was allowed, the dismissal of the suit was set aside and the suit was decreed declaring that the vendors of the original petitioner have 7/24th share in all joint properties. Clauses 4 and 5 of the operative part of the appellate court s order, ’ which are relevant for the present purposes read as under : 4) The plaintiff is entitled to equitable partition. “ 5) While effecting the partition, 7/24th share of defendant No.1 and the deceased Chindhu (original Defendant no.5) be carved out or determined in Gat No.218. The field Gat no. 218 be allotted in partition to the plaintiffs to the extent of his 7/24th share to which he is entitled” 3 WP : 538/2003 3. The original petitioner then filed execution proceedings in the court of Civil Judge, Junior Division, Wadgaon Maval. The judgment debtors respondents no. 2 and 4 raised objection to the execution proceedings contending that the same is null and void since the direction contained at clause 5 of the operative order is contrary to the law settled by the judgment of this court in the case of Anandrao Ganpatrao and Ors. vs. Azizul-Haq Haji Abdul Bari (deceased) by LRs, reported in 1993(3) MLJ-419. By the said judgment, it has been held that in respect of the agricultural lands, which are assessed to the land revenue, if the partition is to be effected and/or a share has to be carved out as per the decree of the Court, it is the Collector or his subordinate gazetted officer, alone who can effect the said partition and deliver possession of the share as per the decree of the Court, in view of Section 54 Code of Civil Procedure. According to the respondents no. 2 and 4, clause 5 of the operative part of judgment of the appellate court giving directions for carving out of the share of the original petitioner, out of gat no.218 being contrary to Section 54 Code of Civil Procedure, could not be executed rendering the execution application null and void being contrary to the law. The executing court by its order dated 15th April 1999 upheld the objection and dismissed the execution proceedings holding that the decree is not executable. 4 WP : 538/2003 4. Mr. Anturkar, the learned counsel for the petitioner submits that the impugned judgment and order is liable to be set aside since it is an established principle of law that the purchaser of an undivided share in any joint property is entitled for equitable distribution as far as possible and therefore it cannot be said that the direction contained at clause 5 is contrary to law. Though Mr. Anturkar is right in his submission, the direction at clause 5 cannot be maintained as it falls short of the submission. The direction given is an absolute direction leaving no discretion to the Collector. The words as far as possible “ are missing therefrom. The direction of equitable distribution by it s’ very principle cannot be an absolute direction. If the right of the purchaser for equitable distribution of the property, is to be protected, the appellate court ought to have stated that such equitable distribution be made as far as possible . The absence of the words “ ” as far as possible renders the direction at clause 5 as contrary to “ ” law. 5. Mr. Godbole, the leaned counsel for the respondents no. 2 and 4 next points out that the appeal court s judgment makes a reference to the ’ suit filed by the respondents being Regular Civil Suit No.4 of 1985, which was decreed by the judgment and order dated 26th September 1988 declaring that the sale-deed dated 4th March 1983 executed by original respondents no. 1 and 5 in favour of the original petitioner is 5 WP : 538/2003 not binding upon the share of the other joint owners in the suit property. The original petitioner was defendant no. 3 to the said suit. He did not challenge the decree. Therefore, it is binding upon him and his heirs. In view of that, direction contained at clause 5 was required to be further qualified. Taking an overall view of the matter, in my opinion the ends of justice can be met by qualifying the direction at clause 5. Both the counsel have no objection to this course of action. The impugned judgment and order is quashed and set aside. The execution proceedings are restored to file. Clause 5 of the judgment and decree is modified as follows. While effecting the partition, 7/24 “ th share of defendant no.1 and the deceased Chindhu (original defendant no.5) in Gat no.218 be carved out and allotted to the petitioner at the time of partition. ” . As regards the balance portion of the land under the deed of conveyance the petitioners are at liberty to adopt such remedies as available in law to them against the vendors. ( Smt. R.P. SondurBaldota, J.)