1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7349 OF 2008 Yashwant Balu Dhanwat (Wadari) and another .. petitioners Versus Anna Balu Dhanwat (Wadari) through LRs 1) Bhanudas Anna Dhanwat (Wadari) and othes. .. Respondent. --- Mr. V.D. Hon, Advocate for the petitioners Mr. Rajendra Deshmukh, Advocate for the respondent Nos. 1 to 4. CORAM : B.R. GAVAI, J. DATE : 14th July, 2009. ORAL ORDER :- 1] By way of present petition, the petitioner challenges the judgment and order dated 14th July, 2008, passed by the learned Civil 2 Judge (J.D.) Shrigonda, Dist. Ahmednagar, thereby rejecting the application filed by the present petitioner for dismissal of the excecution proceedings filed by the present respondents. 2] R.C.S. No. 4/1975 was filed by the predecessor in title of the respondent Nos. 1 to 3. The said suit was decreed and the predecessor in title was awarded 1/6th share in the suit property. The said predecessor in title went in appeal. The appeal was partly allowed and he was awarded 4/15th share on 6/9/1991. Thereafter, the Darkhast was filed before the Civil Judge S.D. on 20th September, 2007. It appears that in the Darkhast proceedings on the application filed by the present petitioner, a precept was sent to the Collector for execution of the partition decree. 3] An application is filed by the present petitioner praying for recalling the said order on two grounds :- Firstly, that the decree was sought to be executed after a period of 12 years and as such, it was barred by limitation. Secondly, there was no notice to the petitioners before the sending the precept to the Collector. 4] The learned trial court, by a well reasoned order and relying on the judgment of the Full Bench in the case of “Ramabai Govind. Vs. Anant Daji” reported in AIR (32) 1945 Bombay 338 and the judgment of the learned Single Judge of this court in the case of "Annasaheb Rajaram Nagane and another Vs. Rajaram Naruti Nagane reported in AIR 2001 Bombay 303, has rejected the application. It could be seen that the Full Bench of this court in the case of “Ramabai Govind" (supra) has held that the application made 3 in the form of Darkhast for sending the decree to the Collector for effecting partition, would not be governed by Article 181 or any other Article of the Limitation Act. It has been further held that effecting partition by the Collector in carrying out an order already passed by the Court is not `execution of the decree' as contemplated by that expression in column No.1 of Article 182 of Schedule I of the Limitation Act. 5] The learned Single Judge of this court in the judgment in the matter of "Annasaheb"(supra) has further held that as regards the property assessed to the payment of land revenue after a partition decree declaring the shares of the parties in the suit properties is passed, all further proceedings are required to be taken before the Collector or any Gazetted Officer subordinate to him, to whom the powers are delegated by the Collector as per Section 54 read with Order 20 Rule 18 of C.P.C. 6] In that view of the matter, there is no force in the contention raised by the petitioner that since the application for sending the decree to the collector for effecting partition is made after 12 years, the same is barred by limitation. In so far as the second contention regarding no notice was given to the petitioner before sending the precept to the collector is concerned, the same is also without substance. It is a settled law that once a preliminary decree is passed in respect of the property assessable to the payment of land revenue, all further proceedings are required to be done by the Collector or an officer authorized by him in that behalf. It is settled law that after passing of the preliminary decree of the property assessable to payment of land revenue, the civil court has no jurisdiction over the property except when some 4 change in the share is required to be made and that too on account of happening of an event subsequent to the passing of the decree. 7] Shri Hon further submits that the respondents themselves have filed R.C.S. No. 52/2006,for a decree of inunction restraining the petitioner from interfering with their peaceful possession over the suit premises. He submits that the said suit is still pending and inspite of the pendency of the aid suit, the execution proceedings were fraudulently filed. . In so far as this contention is concerned, it is well settled that once the preliminary decree for partition is passed in respect of land assessable to land revenue, and confirmed by the appellate court, the only option to the civil court is to send the decree to the Collector for effecting partition and the matters respecting apportionment of the property according to the shares would stand within the jurisdiction of the Collector. In so far as the objection regarding the subsequent suit is concerned, I am of the view that the filing of the said suit would not be relevant, for the purpose of the objection raised by the petitioner before the civil court. 8] In that view of the matter the petition is wholly without substance. The same is, therefore, dismissed with costs which are quantified at Rs. 5,000/- payable to the High Court Bar Library, within a period of 2 weeks from today. It is made clear that if the costs are not deposited within the period prescribed, the petitioner shall be liable for an action for breach of the orders passed by this court. [B.R. GAVAI,J.] Grt/-