1 WP No.6392/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6392 of 2010 Dhondu Vishram Gaidhani & Anr ... Petitioners versus Devly @ Devram P. Gaidhani since deceased Bapu D. Gaidhani & Ors. ... Respondents ... Mr. Prashant D. Patil for the petitioners Mr.P.N. Joshi for the respondent nos.1A to 1J. CORAM : D.G. KARNIK, J DATED : 6th June 2011 P.C. 1. Heard learned counsel for the petitioners and respondent nos. 1A to 1J. None present for respondent nos.2 to 5 though served. 2. The petitioners are the original plaintiffs. Their suit for partition of the suit property was decreed in Civil Appeal No.338 of 2000 decided by Adhoc Additional District Judge, Nashik on 6 December 2005 by passing a decree for partition. The decree has been sent to the Collector for effecting the partition of agricultural lands. In the final decree application no.3 of 2008 filed by the petitioners, they applied for an injunction restraining the respondents from alienating the suit property pending passing of the final decree. By the impugned order, the trial court allowed the application in part and granted injunction against alienation of the 2 WP No.6392/10 movable properties, but declined to grant injunction in respect of immovable properties on the ground that it had no jurisdiction and power to issue a temporary injunction. For doing so it relied upon a decision of this Court in Dhansukhbhai Fakirbhai Patel Vs. Fakirbhai Dayabhai Patel & ors, 2006(1) Mh.L.J 116. The learned Judge referred to and relied upon the following observations made in paragraph no.6 of the said decision. “In this regard I must note that no doubt that after a decree for partition of land assessed to revenue has been passed, the Court has nothing further to do with the decree. The decree is to be executed and the partition is to be effected by the Collector. There cannot, therefore, be any execution proceedings before the Court in the case of such a decree. However, it is equally true that the Court is not entirely deprived of controlling the action taken by the Collector. But this control is very limited. It is to be exercised only if the Collector contravenes the decretal order or transgresses the law relating to partition or refuses to execute the decree.” 3. In my view, the learned Judge has misconstrued the ratio of the decision in the case of Dhansukhbhai Fakirbhai (supra). It appears that therein final decree proceedings were not pending before the court and in the absence thereof the aforementioned observations were made. In the very case this court has clarified 3 WP No.6392/10 that the court is not entirely powerless to control the actions taken by the collector. In my view, in the final decree proceedings pending before it the Civil Court would have jurisdiction to grant an injunction against transfer of the suit property during the pendency of the proceedings for partition before the Collector. If in a suit for partition, the Court can grant an injunction restraining the parties from transferring the suit property even before the rights and contentions of the parties are adjudicated and a preliminary decree is passed. I fail to see how after the rights are adjudicated and a preliminary decree for partition is passed, the court would cease to have the power of restraining the defendant from transferring the property which is a subject matter of the suit during the pendency of the final decree application. Undoubtedly, in the present case a preliminary decree for partition has been passed. An application for final decree is pending as physical partition has not yet been effected and the proceedings are pending before the Collector. In the circumstances, Civil Court hearing the application for final decree can pass an order restraining the defendant from transferring the suit property in respect of which the preliminary decree is already passed. 4. For these reasons mentioned above, the petition is allowed. The impugned order is set aside and respondents are restrained from selling, alienating, transferring or otherwise creating any third party rights in the suit property till the disposal of the final decree application. (D.G.KARNIK, J)