1 wp4661-10 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 4661 OF 2011 Pralhad Krishna Gilbile .. Petitioner Versus Shri Raghunath Narayan Tapkir Since deceased through Legal representatives and others ... Respondents Mr. Paratp Patil for the Petitioner Mr. A.A.Kumbhakoni i/by Tejas Deshmukh for the respondents CORAM : R. Y. GANOO, J. DATED : 3rd October, 2011 P.C. 1. Heard learned counsel on both the sides. 2. In the suit for partition being Regular Civil Suit No. 200 of 1960 filed in the Court of learned Civil Judge, Senior Division, Pune, preliminary decree came to be passed on 22nd June, 1982. An appeal against the said decree was dismissed on 9th March, 1984. The respondent had filed execution proceeding being Regular Darkhast No. 409 of 1989. The appeal was dismissed. It is noticed that in Writ Petition no. 5238 of 1994, order dated 28th June, 1995 passed in Regular Darkhast No. 33 of 1977 was set aside and Respondent No.1 was allowed to pursue his remedy in Regular Darkhast No. 409 of 1982. 2 wp4661-10 3. On 1st July, 2009, an application came to be filed before the learned Civil Judge Senior Division Pune being Misc. Civil Application No. 565 of 2009 by the present respondents. By the said application it was prayed that the papers be referred to the Collector Pune, concerning the preliminary decree so that the Collector will able to take further steps in accordance with the provisions of section 54 of the Code of Civil Procedure. That application was granted by order dated 23rd September, 2009 by the learned Civil Judge, Senior Division Pune. The learned Civil Judge Senior Division, Pune has ordered that the preliminary decree dated 22nd June, 1982 passed in Regular Civil Suit No. 200 of 1960 be forwarded to the Collector, Pune for effecting partition as mentioned in the decree. This order is challenged in this petition. 4. Perusal of the said order dated 23rd September, 2009 would go to show that the learned Judge was impressed by the fact that the Court was required to forward the decree to the collector so that the partition can be effectively carried out in terms of the preliminary decree. Learned advocate appearing for the the petitioner submits that while passing the order dated 23rd September, 2009 no hearing was provided to the petitioner. So far as this aspect is concerned, I am inclined to observe that even if the hearing is not given to the petitioner, that would not affect the 3 wp4661-10 petitioner's case in as much as the collector Pune would do his job as per section 54 of the CPC and I am sure that the Court which will pass the final order, will provide proper hearing to the petitioner before passing the final order based on the report of the Collector. Hence, this point does not help the petitioner. 5. It was argued that the decree was passed on 22nd June, 1982, and Misc. Civil Application No. 565/1999 for referring certain matter to the collector came to be filed in July, 2009, i.e. practically after 12 years. Learned advocate for the petitioner submits that the action initiated by the respondents is after sufficiently long time and there is delay in trying to get preliminary decree further acted upon. In my view, this objection cannot survive because, the preliminary decree passed, has to be taken ahead may be after 12 years. The delay would not come in the way of referring the matter to the collector. 6. It was contended by the petitioners that the respondents should file execution application. The learned Advocate Mr. Kumbhkoni, appearing on behalf of the respondents, submitted that the Supreme Court has taken consistent view that the final decree alone can be executed by filing execution application. He pointed out that rights of the parties are 4 wp4661-10 crystallized only after passing the final decree. In support of this, he relied upon the judgment in the case of Shankar Balwant Lokhande (dead) by LRs. Vs. Chandrakant Shankar Lokhande & another reported in (1995) 3 Supreme Court Cases 413. He also relied upon the judgment in the case of Dr. Chiranji Lal (D) By LRs. Vs. Haridas (D) by LRs. reported in (2005) 10 Supreme Court Cases 744, where the Supreme Court had confirmed the view which was taken up in the case of Shankar Balwant Lokhande (Dead ). 7. I have perused the aforesaid judgments. Argument advanced on behalf of by the learned advocate for the respondents is correct. In my view, the impugned order does not require any interference. The papers are referred to the Collector as per Section 54 of the Code of Civil Procedure. The learned Civil Judge, Senior Division Pune will have to proceed in accordance with the provisions of law after the report from Collector Pune is received. The petition is required to be dismissed as no violation of right of the petitioner is made out. 8. Accordingly Rule is discharged. There shall be no order as to costs. (R. Y. GANOO, J.)