(1) SA. 726.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 726 OF 2009 1] Nandkumar S/o Narayan Shivalkar, Age : 55 years, Occu.: Agri., & Service, 2] Vivek S/o Nankdumar Shivalkar, Age : 18 years, Occu.: Education Both R/o Bhada, Tq. Ausa, District : Latur .. Appellants VERSUS 1] Sanju S/o Marchand Ubale, Age : 39 years, Occu.: Agri., 2] Jatindar @ Balu S/o Marchand Ubale, Age : 43 years, Occu.: Agri., 3] Adnyanbai w/o Marchand Ubale, Age : 66 years, Occu.: Household, Resp. no. 1 -3 R/o House No.7/10, Near Devi Mandir & Civil Court, At Post Barshi, Tq. Barshi, Dist. Solapur 4] Marchand S/o Eknath Ubale, Age : 80 years, Occu.: Agri., R/o Bhada, Tq. Ausa, Dist. Latur .. Respondents WITH CIVIL APPLICATION NO. 10325 OF 2009 IN SECOND APPEAL NO. 726 OF 2009 Nandkumar S/o Narayan Shivalkar and others .. Applicants VERSUS Sanju S/o Marchand Ubale and others .. Respondents (2) SA. 726.2009 Mr. Amit S. Deshpande, Advocate for the appellants-applicants None present for the respondents CORAM : A.V. NIRGUDE, J. DATED : 7TH OCTOBER, 2009 ORAL ORDER:- 1] This second appeal is filed against the concurrent findings of the Courts below. The facts are as under:- . Civil Suit no. 190 of 1971 was filed by one Adnyanbai and her two minor sons against her husband Marchand and two others. It was Adnyanbai’s case that she was legally wedded wife of the defendant Marchand and that there existed a joint Hindu family of the defendant Marchand and his children and that there were certain lands belonging to the joint Hindu family. She alleged that her husband defendant Marchand had gone astray and had started neglecting her. Her children were entitled to partition of the joint Hindu family. The defendant Marchand did not oppose the suit and the suit was decreed soon after, in 1971. Adnyanbai and her children then filed an application for execution of the decree but the same came to be dismissed for default. The suit lands thus remained undivided. In the meantime, many years passed by. The Defendant Marchand and his son from other woman, Shankar continued cultivation of the suit lands and during 2004-2006, they sold most of the suit lands to the present appellants. (3) SA. 726.2009 2] It is the case of the appellants that they was not aware of the decree passed in suit no. 190 of 1971 and that they purchased the lands for valuable consideration. The appellants took possession of the lands and started cultivating the same. In 2003, Adnyanbai and her children again started execution of the decree passed in suit no. 190 of 1971. The Collector started taking steps for partition etc. This prompted the present appellants to file an objection in the execution petition. The appellants raised mainly two objections to the execution proceedings. First was, they said that the execution was time barred in view of Article 136 of the Limitation Act, which provides only 12 years of limitation from the date of the decree. Second objection raised by the appellants was, that the decree was null and void because before the judgment was delivered, the other defendant in the suit, one Laxmibai was not served with summons. The appellants also said that the plaintiffs in suit no. 190 of 1971 were not even entitled for partition because they had no right to the suit land. The appellants stated that the defendant no.2 in suit no. 190 of 1971 was the legitimate wife of defendant Marchand and she and her children alone were entitled to partition of the land. They in short suggested that decree was bad in law. Both these objections were rejected by the Courts below. The objection regarding limitation was squarely (4) SA. 726.2009 met by referring to the judgment of our Court reported in AIR 2001 Bombay 303 in the matter of Annasaheb Rajaram Nagane and anr. V. Rajaram Maruti Nagane and others. The learned Judge of this Court considered the scheme of section 54 and Order 20 Rule 18 of the Code of Civil Procedure and held that after the decree for partition is passed, the decree holder is not required to make application to the Court again for sending the decree to the Revenue Officer for effecting partition. The Court held that if such application is made it does not amount to execution proceeding and that in a case of such nature, it is the duty of the Court to send the decree for execution to the Revenue Officer. In view of this, the Court held that the provisions of Article 136 of Limitation Act would not apply to an application made by a decree holder seeking sending of the decree of the Revenue Officer. The second objection raised to the legality of the decree in suit no. 190 of 1971 is based on facts and there is no scope for the executing Court to examine such factual aspect because it would require the executing Court to go behind the decree that was sought for execution. 3] The questions as to whether Adnyanbai and her children were entitled to decree or that whether the defendant Marchand, Laxmibai and Laxmibai’s children comprised of the joint family property being the (5) SA. 726.2009 legally wedded wife and legitimate children of defendant Marchand are beyond the scope of enquiry in execution proceedings. Probably, Laxmibai and her children and persons claiming through them could have challenged the validity of the decree in suit no. 190 of 1971 by filing an appeal. But if that was not done, such an objection based on such factual background to the judgment and decree in suit no. 190 of 1971 is beyond the scope of enquiry under Order 20 Rule 97 of the Code of Civil Procedure etc. The appeal should therefore, fail. The Second Appeal stands dismissed. 4] In view of the dismissal of the Second Appeal, Civil Application no. 10325 of 2009, seeking stay does not survive and the same also stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp