1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 101 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. S.S.Kazi, Advocate for appellant. Mr. G.D.Shaikh, Advocate for respondent. ............................... CORAM : S.V. GANGAPURWALA, J. DATE : 22/11/2010 PER COURT : 1. The present appellant is a decree holder. The present appellant filed Suit for partition and separate possession, which came to be decreed and the decree was directed to be referred under Section 54 of the Code of Civil Procedure[ For short, ‘ the Code ’ ] to the revenue authority. The decree holder did not take any steps. The present respondents, who were defendants, filed an application for execution of the said decree. The present decree holder raised an objection to the said execution petition filed by the present respondents on the ground of limitation, so also, on the ground that the present respondents did not 2 have any right or authority to present the said execution petition as no separate shares are carved out in their favour in the decree passed. The said objection came to be rejected. Against the rejection of the said objection, present appellants preferred R.C.A. No. 276 of 2006. R.C.A. No. 276 of 2006 came to be dismissed by the District Court on merits. Aggrieved by the same, the appellant has preferred the present Second Appeal. 2. Mr. S.S. Kazi, the learned counsel for the appellant contended that the execution petition was not tenable as it was barred by limitation. The Court while passing the decree, did not allot any share to the defendant, so also, the decree can not be executed as no final decree was passed. The Trial Court rejected the objection petition erroneously. According to Mr. Kazi, the learned counsel, the appellate Court committed grave error and the decree was not executable. 3. Per contra, Mr. Shaikh, the learned counsel for the respondent submits that as no final decree was passed, the question of limitation for execution of decree for partition and separate possession does not arise and the decree is to be referred to the revenue authorities under section 54 of the Code and for the purpose of which, execution is filed. He raises an objection that the Appeal before the District Court itself was not maintainable, interalia the present Second Appeal would not be maintainable. 3 4. Regarding the contention that the Appeal before the District Court itself was not maintainable, the said contention deserves consideration. Mr. Kazi, the learned counsel for the appellant fairly conceded that the Regular Civil Appeal before the District Court was not maintainable and he should be permitted to convert the present Second Appeal into the Writ Petition. When the Regular Civil Appeal was not maintainable, it was the case of lack of inherent jurisdiction and the said order would also be nullity, interalie the present Second Appeal would not be maintainable. The present Second Appeal deserves to be dismissed on the said count itself by holding that the Judgment delivered by the District Court, itself is a nullity being without jurisdiction. 5. The appellant is at liberty to take the proceedings as would be permissible in law. The Second Appeal is accordingly disposed off. 6. In view of disposal of Second Appeal, the Civil Application does not survive and is disposed off. [ S.V. GANGAPURWALA ] JUDGE knp/SA 101.2010