1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. C.A.O. NO. 4226/2008 IN M.C.A.ST.NO.1646/2008 INS.A.NO.161/1991 Abdul Jabbar Abdul Gaffar (dead) throuh Lr. Abdul Wahab... -VERSUS- Abdul Khan Aziz Khan and others. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ CORAM : B.P.DHARMADHIKARI, J. DATED : 17.06.2011. Heard Shri N.A. Vyawahare, learned Counsel for the applicants and Shri P.N. Deopujari, learned Counsel for non-applicants. For the reasons disclosed in the application, delay of 24 days in filing M.C.A.St. is condoned. Office to register M.C.A.St. Civil Application is accordingly disposed of. --------- M.C.A.St.No. 1646/2008. Heard respective learned Counsel for the parties. 2 The contention of the applicants that the decree dated 01.04.1986 passed by the Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 50/1983 which directs execution of a sale deed of 1 acre of land in favour of the original plaintiff nos. 1 and 2 and deceased defendant no.12 together, with further declaration of their 1/3rd share each in that 1 acre portion is, bad, because there cannot be any partition and separate possession of such 1/3rd portion. He contends that entitlement for such partition and separate possession is also declared by that decree. He relies upon the provisions of Section 8-AA of the Bombay Prevention of Fragmentation (Consolidation on Holding) Act, 1947 to urge that the decree therefore is, un-executable. Shri Deopujari, learned counsel for the non-applicants invites attention to the judgment delivered by me in Second Appeal. He contends that though the point was argued, as there was no sufficient material on record, the same has not been looked into. He however, points out that as per scheme of Section 8AA, the question about creation of a fragment 3 with such decree being bad can be raised before the executing authority and hence, the applicants are free to raise their objections about Section 8AA (relating to the fragment as envisaged and allegedly ordered by the Trial Court) before that Forum. Having heard the learned counsel for the parties, I find it appropriate to permit the applicants to raise this challenge before the Executing Authority in accordance with law. With this liberty, present Application is disposed of. No costs. JUDGE Rgd