KBP 8099-08.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8099 OF 2008 Baban Rakhama Valunj and anr. ..Petitioner Vs. Eknath Kisan Kashikedar and ors. ..Respondents ......... Mr.S.P.Thorat, for petitioner. Mr.N.V.Bandiwadkar, for respondent no.1. ......... CORAM : A.S.OKA, J.. DATE : 18 th August, 2009. P.C. : 1] Heard learned counsel for the petitioners. 2] The petitioners are original defendants-judgment debtors. The respondents are the plaintiffs. The suit filed by respondent plaintiff was dismissed. In the appeal preferred by the respondent, the District court passed a decree directing the partition and separate possession of 4/5 th share of the respondents in the suit property and directed that the partition shall be effected by the Collector in accordance with Section 54 of the Code of Civil Procedure, 1908. An inquiry into mesne profits was also ordered. The decree passed by the appellate court was confirmed in Second Appeal by this Court. An application purporting to be an execution application was filed by the respondents. An objection in writing was filed by the petitioners contending that the decree passed by the District Court was not an executable decree as it is a preliminary decree. A contention was raised that unless a final decree was passed, the execution application was not KBP 8099-08.sxw 2 maintainable. The said application has been rejected by the impugned order. 3] The learned counsel for the petitioners submitted that the execution application was not maintainable as there is no final decree of partition passed which is capable of being executed. He submitted that the application for execution filed by the respondent is not maintainable. He submitted that the decree was not executable as the District Court could not have passed a decree for partition and the said decree ought to have been passed by the trial court. 4] I have considered the submissions. As per the decree for partition which has attained finality, the direction was that the partition shall be effected by the Collector in accordance with Section 54 of the Code of Civil Procedure, 1908. The learned counsel for the petitioners is right to the extent that such a decree could not have been executed by the Civil Court. However, the impugned order notes that in terms of Section 54 of the said Code, a precept has been already sent to the Collector. In view of this factual position, now it is for the Collector to take steps in accordance with law and thereafter effect the partition and to that extent the executing court has no role to play. 5] As far as the last contention is concerned, in view of sub-section 2 of Section 107 of the said code, the District Court can always pass a decree in as much as in an appeal the District Court can do everything which the trial court could have done. 5] Subject to what is observed above, there is no merit in the petition and the same is rejected. ( A.S.OKA, J. )