IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.598 OF 2009 Sou.Supriya Chandrakant Karkare ...Petitioner V/s. Smt.Meena Bhalchandra Kale & Ors. ...Respondents ...... Mr.Nikhil Chandrakant Karkare for Petitioner. Mr.Jaydeep Deo for Respondent No.3. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JANUARY 23, 2009. JANUARY 23, 2009. JANUARY 23, 2009. P.C. 1. Heard Counsel for the parties. 2. The only argument canvassed before this Court is that the Civil Judge, Senior Division had become functus officio to pass the impugned order and moreso, after the decision of the Additional District Judge dated 25th October 2004. According to the Petitioner, the earlier decision dated 6th September 2003 had merged in the order dated 25th : 2 : October 2004, for which reason, the Civil Judge, Senior Division had become functus officio. To buttress this submission, reliance is placed on two decisions of the Apex Court in the case of M/s.Gojer Brothers (P) Ltd. v. Sri Ratan Lal M/s.Gojer Brothers (P) Ltd. v. Sri Ratan Lal M/s.Gojer Brothers (P) Ltd. v. Sri Ratan Lal Singh reported in AIR 1974 SC 1380 (Para 10) and in Singh reported in AIR 1974 SC 1380 (Para 10) and in Singh reported in AIR 1974 SC 1380 (Para 10) and in the case of Som Dev & Ors. v. Rati Ram & Anr. the case of Som Dev & Ors. v. Rati Ram & Anr. the case of Som Dev & Ors. v. Rati Ram & Anr. reported in (2006) 10 SCC 788 (Para 19). reported in (2006) 10 SCC 788 (Para 19). reported in (2006) 10 SCC 788 (Para 19). 3. After having perused the documents on record, I have no hesitation in taking the view that the argument proceeds on some misconception of the factual position. This argument clearly overlooks the position that the Civil Judge, Senior Division, Pune by order dated 6th September 2003 had merely considered the relief claimed in Exhibit 66 filed in final decree Application No.47 of 1984. That was a process undertaken in exercise of powers under Order 21 of Code of Civil Procedure to effectuate the preliminary decree. The operative order passed on the said application reads thus: "O R D E R 1) The partition, shown by letters, B.C.I, : 3 : E.P, I.D. in the map, annexed alongwith report, filed by Shri.Bhat which is shown by brown coloured boundary line, on plan, be allotted to the applicants towards their 1/3rd share. ii) The partition, shown by letters, A,B,C,D,E,F,G,H,I, allotted to opponent No.Sau.Supriya Karkare. iii) The applicants to bear the expenses for constructing separate pump/electric motor for the water storage tank, for the opponents No.1. iv) The expenses to be inquired for pining for the water line all to be borne by applicants and opponent No. equally. v) Necessary modifications, in this portion marked by boundary line, so far as 1/3rd share of applicants is concerned are to be carried out by the applicants at their cost. vi) Court Commissioner be appointed for effecting this partition and doing necessary things for putting the parties in actual possession thereof. vii) Parties to suggest the name of Court Commissioner. viii) Parties to give estimates, regarding expenses to be incurred for constructing independent pump/electric motor for water storage tank and some piping for the water lines. ix) Parties to suggest and the submit the estimates, if any, regarding any other thing, other than these things for effecting equitable partition i.e. electric meter, partition wall etc." 4. It is this decision which was subject : 4 : matter of challenge in Civil Appeal No.710 of 2003 and the Appeal preferred by the Petitioner came to be dismissed by the following order: "O R D E R 1. The appeal stands dismissed. 2. The Judgment and Order passed by the learned Civil Judge, Senior Division, Pune in Final Decree application No.47/1984 dt.6.9.2003 stands confirmed. 3. In the circumstances of the case, parties are directed to bear their own costs. 4. A decree in the above terms shall be drawn." (emphasis supplied) 5. What is relevant to note is that even the Appeal Court order clearly provides for a decree to be drawn in terms of the earlier order, which came to be confirmed in the said Appeal. The impugned order, as a matter of fact, purports to comply with the said requirement. The impugned order is as follows: "O R D E R : 5 : 1. Application Exh.120 filed by the applicant/plaintiff for possession of the share allotted to him, is hereby rejected. 2. Final decree as per order passed below Exh.66 be passed. The copies of map attached to the commission reports Exh.41 and 107 shall form part of the final decree." 6. This common impugned order is passed below Exhibit 1 and Exhibit 120 in the final decree application No.47 of 1984. It is, therefore, not a case of any conflicting order passed by the Civil Judge, Senior Division or for that matter, an order passed without jurisdiction. Being an Executing Court, it has to draw up the final decree in terms of order passed below Exhibit 66, which was impugned in the Appeal preferred by the Petitioner being Civil Appeal No.710 of 2003. Once this position is accepted, the argument of the Petitioner will have to be only stated to be rejected. Hence, this Petition fails. The same is dismissed. A.M.KHANWILKAR, J.