1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.355 OF 2009 Shrikant Sakharam Shirolkar & Ors. ...Petitioners vs. Premchand Appa Patil & Ors. ...Respondents Mr.Surel Shah for the petitioners Mr.G.S.Godbole i/b Mr.P.M.Arjunwadkar for respondent nos. 1 and 2 CORAM :A.S.OKA,J. DATE : MARCH 22, 2010 P.C.: 1 The submissions of the learned counsel for the parties were heard on the earlier date. On 20th January 2009 , this Court issued a notice for final disposal at admission stage. 2 Before adverting to the submissions made by the learned counsel for the parties, a reference will have to be made to the facts of the case. In a civil suit no.232 of 1937 filed by the predecessor of the petitioners, a preliminary decree was passed on 31st July 1945. The operative part of the said preliminary decree reads thus: : Plaintiff do pay into Court a sum of Rs.375/- for being paid to Defendant no.5 and to Defendant no.6 half to half. On the Plaintiff paying the said sum within six months, hence, the share recover possession of his one fourth share in the suit land by a satisfaction by metes and bounds. 2 All parties in this case are to bear their own costs. 3 Perusal of the Judgment shows that the suit was filed by the predecessor of the petitioners for partition and separate possession of 1/4 share in the suit property which was originally owned by one Appaji Aadgonda Patil. It is alleged that the said Appaji had mortgaged the said property in favour of one Tatya Chivate. It is alleged that the mortgage was subsequently redeemed. According to the original plaintiff, the heirs of the said Appaji inherited the said property. The 7th defendant in the said suit was allegedly entitled to 1/4 share which was allegedly sold to the plaintiff on 25th March 1936. A reference has been made in the judgment to the agreement dated 3rd may 1937 which records that a debt of a sum of Rs.1500/- was incurred by the heirs of the said Appaji for paying mortgage money to the said Tatya Chivate. In the agreement it is recorded that the original plaintiff being purchaser of 1/4 share in the suit property is proportionately liable for the said encumbrance of Rs.1500/-. The suit was contested by the defendants by raising various contentions. 4 An application purporting to be an execution application was filed by the petitioners. In the said application it was contended that the opponent no.8 to the said application namely Dipak Premchand Patil (respondent no.1b herein) had purchased the suit property from the original defendant nos. 3 and 4. A prayer was made in the execution application that the papers be forwarded to the Collector in accordance with section 54 of the Code of Civil Procedure,1908 r/w Rule 18 of Order XX of the said Code. An office objection was raised to the tenability of the execution application. By the 3 impugned order dated 28th September 2007, the trial Court rejected the proposed presentation of the application. The learned trial Judge observed that almost all the original defendants were dead and only Payagonda Aadgonda Patil is alive. It is observed that the said Deepak is a stranger to the decree. It was observed that merely because no limitation was fixed to the execution, under that pretext the petitioners should not be allowed to execute the decree against a stranger. Therefore, the learned Judge purported to reject the execution application on the ground that the same is not tenable. 5 An appeal was preferred by the petitioners. The appeal has been dismissed as not maintainable. While dismissing the appeal, the learned District Judge observed that the petitioners were under an obligation to move the application for execution within 12 years in view of Article 136 of the Limitation Act, 1963. 6 The learned counsel for the petitioners submitted that the respondent no.1b had purchased the suit property after the decree was passed and therefore, he was bound by the decree. He invited my attention to the final decree passed by the trial court which directs that out of the amount deposited by the original plaintiff, a sum of Rs. 187 and 8 annas shall be paid to the 5th defendant. He pointed out that a specific assertion made by the petitioners is that the said Deepak had purchased the suit property from the original 3rd and 4th defendants by sale deeds. He pointed out that in the Judgment delivered in the suit it is pointed out that the mortgage of the suit property in favour of the defendant no.5 Tatya was already redeemed. The predecessor of the petitioners purchased the 1/4 share of the defendant no. 7. He pointed out that the predecessor of the 4 petitioners was liable to pay contribution towards the amount paid towards the mortgage money. He submitted that the Courts below have completely ignored that the prayer made in the execution application was for sending the papers to the Collector in accordance with section 54 read with Rule 18 of Order XX of the said Code for effecting partition and separate possession of the share of the petitioners. He submitted that the law on this aspect is well settled and there is no period of limitation prescribed for sending precepts to the Collector and section 54 of the said Code or filing an application for final decree on the basis of a preliminary decree of the partition. He placed reliance on the decision of this Court in case of Ramabai Govind Vs. Anant Daji [AIR (32)1945 Bombay 338]. He also placed reliance on the decision of the Apex Court in case of Bikoba Deora Gaikwad and others Vs. Hirabai Marutirao Ghorgare and others [(2008) 8 SCC 198]. He also pressed into service the decision of this Court in case of Annasaheb Rajaram Nagane and another vs. Rajaram Maruti Nagane and others [2001 (Supplimentary 2) Bombay Cases Reporter 872]. He also relied upon a recent decision of the Apex Court in case of Shub Karan Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna (2009-JT-11-583). 7 The learned counsel for the respondents pointed out that the predecessor of the petitioners had filed a final decree application which was disposed of on 25th January 1947. He invited my attention to clause (3) of the operative order passed in the final decree application. He submitted that the Court purported to pass a final decree even as regards partition of 1/4 share of the predecessor of the petitioners and therefore the execution application for sending the papers under section 54 of the said Code was not maintainable. He 5 submitted that considering the nature of the prayers in the suit, the decree will not be governed by Order XX of the said Code but the same will be governed by Order XXXIV of the said Code. He submitted that as the decree will be governed by Order XXXIV, rule 18 of Order XX will have no application and therefore, the trial Court has rightly declined to register the execution application. 8 I have given careful consideration to the submissions. The suit filed by the predecessor of the petitioners was for partition and separate possession of 1/4 share in the suit property. In the Judgment in the suit it is noted that the property was mortgaged to one Tatya Chivate (5th defendant) and the mortgage was redeemed. The predecessor of the petitioners claimed to be purchaser from the defendant no.7 under a registered sale deed in respect of the 1/4th share in the suit property. It is pointed out that there was a separate agreement executed which records that a debt was incurred by heirs of the Appaji for redeeming the mortgage and therefore, predecessor of the petitioners is proportionately liable for the said encumbrance of Rs. 1500/-. While deciding the issue nos.8 and 9 in the suit , the learned trial Judge noted that the defendants hold a charge on the plaintiff s share in the suit land to the extent of Rs.375/-. While dealing with the issue no.4, the learned trial Judge held that before obtaining possession of his share, the plaintiff will have to pay total amount of Rs.375/- to the 5th and 6th defendants in equal shares. The preliminary decree directs that on the plaintiffs paying the said amount to the 5th and 6th defendants, he will be entitled to separate possession of his share in the suit property. It will be necessary to refer to the final decree passed on the application of the predecessor of the petitioners. Final decree records 6 that in terms of the preliminary decree, with the consent of the 6th defendant, the original plaintiff deposited a sum of Rs.187/- and 8 annas for payment to the 5th defendant. The final decree records that a sum of Rs. 187/- and 8 annas deposited by the plaintiffs shall be paid over to the 5th defendant. The final decree directs the defendants to hand over documents relating to mortgage in respect of the suit property. English translation of the clause (3) of the operative part of the final decree reads thus : As per the preliminary decree, the plaintiff may obtain possession of 1/4 share by getting the partition effected. 9 It must be noted here that on plain reading of the final decree, obviously the same was not passed in respect of the preliminary decree of the partition of 1/4 share. The final decree relates only to the payment of the contribution by the plaintiffs. The preliminary decree directs that if the specified amount was paid by the plaintiffs within six months, they will be entitled to recover 1/4 share in the suit land. Clause (3) of the final decree merely reiterates what is provided in the preliminary decree. It records the fact that in view of deposit of the amount by the original plaintiff in terms of preliminary decree, he will be entitled to recover his separate share. 10 The decree of partition is in respect of the land subject to payment of revenue assessment. It directs that the plaintiff shall be entitled to recover his 1/4 share on payment of his contribution of the mortgage money as the mortgage was already redeemed and a charge was kept on the share of the 7th defendant for repayment of the 7 loan taken for payment of mortgage money. Essentially it is a decree for partition. Therefore, Rule 18 of Order XX of the said Code will squarely apply and in view of sub rule 1 of Rule 18 of Order XX read with section 54 of the said Code, the petitioners were entitled to apply for precept. From the language of section 54 it is abundantly clear that the same is applicable when the decree is for partition of undivided estate assessed to payment of land revenue. If a decree of partition of estate assessed to land revenue is passed in a suit for redemption of mortgage or even in a suit for specific performance, such part of the decree will be governed by section 54 of the said code. 11 The respondent 1(b) Deepak has purchased the suit property after passing of the preliminary decree and that is the reason why the decree is sought to be executed against the said Deepak. The said Deepak is a transferee claiming through defendants in the suit against whom the decree has been passed. The Courts below have ignored the provisions of section 146 of the said Code. Therefore, the finding of the Courts below that the execution application was not competent against the transferee is completely erroneous. In any case, the prayer in the application styled as an application for execution was in fact a prayer for issuing a precept in accordance with section 54 of the said Code. 12 As far as application for sending precept under section 54 of the said Code is concerned, the law is well settled. It is only a ministerial act on the part of the Court of forwarding papers under section 54 of the said code. An application moved by a party requesting the Court to perform the said ministerial act is not governed by limitation. The finding in the impugned order 8 regarding bar of limitation is completely erroneous. Hence, the petition must succeed and the trial Court will have to be directed to register the application made by the petitioners and to pass order thereon in accordance with the law considering the prayers made therein. 13 Hence, I pass the following order : i) Impugned orders are quashed and set aside. The trial Court is directed to register the application made by the petitioners and to pass order thereon considering the prayer made therein in the light of the observations made by this Court in this Judgment. ii)Petition is allowed in above terms. . At this stage, the learned counsel for the respondent prays for stay of the execution of this order. Prayer is rejected. JUDGE