( 1 ) wp712-09 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 712 OF 2009 1. Milind s/o Madhukarrao Karhade, R/o Bhat Galli, Ambajogai, Tq. Ambajogai, District Beed. 2. Smt. Shilabai w/o Keshavrao Karhade, R/o Adarsh Colony, Ambajogai, Tq. Ambajogai, Dist. Beed. PETITIONERS VERSUS 1. Upendra s/o Vishnupant Karhade, R/o Ganeshpar, Bhat Galli, Ambajogai, District Beed. 2. Gopalkrishna s/o Vishnupant Karhade, R/o Block No. 7, Ganga Shivshakti Nagar, Ambarnath East, Dist. Thane. 3. Nagesh s/o Vishnupant Karhade, R/o North Ocean, Ave. Pentegaon, N.Y. 772631-289-7276 U.S.A. 4. Smt. Latabai w/o Arwind Karade, R/o Bhat Galli, Ambajogai, Taluka Ambajogai, District Beed. 5. Balkrishna s/o Sarvottam Karhade, R/o B-25, Sangali-Vaibhav Society, Natwar Nagar, Lane No. 5, Jogeshwari East, Mumbai. 6. Manjusha s/o Bhaskar Joshi, R/o “Airavat”, Plot No. 94, Shreynagar, New Osmanpura, Aurangabad. 7. The Deputy Collector, Land Reforms, Administrative Building, Beed. 8. The Sub Registrar, Sub Registrar Office, Class-2, Ambajogai, District Beed. RESPONDENTS ( 2 ) wp712-09 ..... Mrs. M.A. Kulkarni, advocate for the petitioners. Mrs. Sanjivani Deshmukh-Ghate, advocate for the respondents No. 1 to 4. Mr. Rajendra S. Deshmukh, advocate for respondents No. 5 and 6. Mr. N.N. Jadhav, AGP for respondents No. 7 and 8. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 8th February, 2010] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and heard finally with the consent of learned counsel for the parties and learned AGP. 2. By this petition, the petitioners impugn order rendered by the learned Civil Judge (S.D.), Ambajogai, on application (Exh-44) filed by the respondents in suit (R.C.S. No. 16/2008). By the impugned order, the learned Civil Judge held that the suit was hit by principle of res judicata to the extent of part of the reliefs stated in prayer clauses (A) to (C) and (E). The suit, however, was not held as barred to the extent ( 3 ) wp712-09 of prayer clause (D). 3. The petitioners are original plaintiffs. They filed suit (R.C.S. No. 16/2008) for declaration and perpetual injunction. Subject matter of the dispute is agricultural land bearing Survey No. 381/1, admeasuring 15 acres 1 guntha, situated at Ambajogai. It is not necessary to set out the rival pleadings in as much as the issue involved is as to whether the said land was abolished inam and exclusively granted in favour of deceased Pandit Karhade or it was the joint property of the three (3) brothers, including himself. 4. There is no dispute about the fact that previously, Pandit Karhade i.e. real brother of deceased Vishnu had filed a suit for perpetual injunction (R.C.S. No. 256/1972) against deceased Vishnu Karhade and others. One of the issues raised in the said suit was as to whether deceased Pandit Karhade, who was elder brother of said Vishnu Karhade, was the exclusive owner as he alone was declared to be the occupant after ( 4 ) wp712-09 abolition of the inam. The said issue was answered in negative. So also, the civil Court held that he alone was in lawful possession of the said land. Therefore, his suit was dismissed. The decree had attained finality. Lateron, deceased Vishnu alias Vishnupant Karhade filed suit (R.C.S. No. 196/1998) for partition and separate possession of the properties including the said land. The suit was decreed. The decree in the said suit (R.C.S. No. 196/1998) was passed on 22-09-1988 and became final. The civil Court held that Vishnu alias Vishnupant Karhade was entitled to receive 1/3rd share in the suit properties. 5. The petitioners filed suit (R.C.S. No. 16/2008) for declaration that the decree rendered in the partition suit (R.C.S. No. 196/1998) may be declared as null and void. They also sought declaration that said decree is inoperative and in-executable due to non- fulfillment of the requisite conditions and, therefore, it was not binding on them. They further sought declaration that they are the exclusive owners of the land Survey No. 381/1 (suit land). They further ( 5 ) wp712-09 submitted that mutation entry granted in favour of the respondents was void and inoperative. 7. The defendants (respondents) filed application (Exh-44) for framing a preliminary issue regarding maintainability of the suit in respect of the declarations sought by the petitioners (plaintiffs). By the impugned order, their application was partly allowed. 8. Heard learned counsel. 9. The petitioners submit that without framing all the issues and without considering necessity to decide the issue regarding bar of res judicata as preliminary issue, the application could not have been allowed. It is contended by learned counsel for the petitioners that the issue regarding res judicata could not have been isolatedly considered without there being other issues. It is further contended that the petitioners are challenging the decree of partition because of its non- executability due to non-compliance of the conditions ( 6 ) wp712-09 enumerated therein. The counsel would submit that it was a decree nisi and, therefore, could not have been treated as a final decree which could be executed. The learned counsel seeks to rely on certain observations in “Pratima Sinha and others v. Shashi Kumar Narain Sinha and others” 2004 DGLS (Soft.) 1596. The counsel for the respondents submits, however, that the impugned order is legal and proper. The counsel further invited my attention to the observations in “Abdul Rahman v. Prasony Bai and another” (AIR 2003 S.C. 718). 10. The ordinary course of dealing with a suit is to frame all the issues under Order-XIV Rule-1 of the Civil Procedure Code. The Court has power to decide the suit or any part thereof on basis of preliminary issue. The language of Order XIV Rule-2 of the Civil Procedure Code is quite clear. A plain reading of Rule-2 of Order XIV would show that a case may be disposed of on a preliminary issue if it is covered by sub-clause (2) of Rule-2. The sub-clause (2) of Rule-2 reads as follows : ( 7 ) wp712-09 “O.XIV R-2ule – Court to pronounce judgement on all issues - (1) ***** (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” It may be noticed that exception is carved out by virtue of Rule-2 to deal with the suit or a part thereof on strength of preliminary issue though the general Rule as envisaged is that the Court should decide all the issues as contemplated under Order XIV Rule-2 (1) of the Civil Procedure Code. The proper procedure to be followed is to frame all the issues involved in the suit and thereafter, consider the request of the party to decide ( 8 ) wp712-09 the matter on preliminary issue. 11. In “Abdul Rahman v. Prasony Bai and another” (supra), the Apex Court observed that for the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issue, no particular procedure was required to be followed by the High Court. It is pertinent to notice that the necessary issues were settled in that case as would be amply clear from observations in paragraphs No. 5 and 6 of the said judgement. In “Pratima Sinha and others v. Shashi Kumar Narain Sinha and others” (supra), the Apex Court observed as follows: “However, we do not intend to decide the matter on merits at all. We are of the view that the Subordinate Judge should have framed the issues arising out of the pleadings in accordance with the procedure of Order 14 Rule 1 of the Civil Procedure Code. After framing all the issues, if the trial Judge is of the view that any of the issues raised would dispose of the suit either wholly or in part then the Judge can on the basis of the ( 9 ) wp712-09 provisions of Order 14 Rule 2 decide such issue. The Subordinate Judge not having followed this procedure, we do not think that it would be appropriate to uphold the decision of the Subordinate Judge.” 12. Considering the above legal position, it will have to be said that the learned Civil Judge did not follow due procedure. He ought to have framed all the issues and thereafter, could have considered the request to decide any particular issue as a preliminary issue. The matter does not stop here. The maintainability of the suit under section 47 of the Civil Procedure Code also should have been considered by the civil Court. For, language of section 47 (1) of the Civil Procedure Code would show that all the questions relating to execution of the decree ought to be decided by the executing Court and not by a separate suit. Therefore, it prima facie appears that besides the issue of res judicata, such issue regarding maintainability of the entire suit could be considered instead of deciding the suit in piecemeal manner by eliminating some of the reliefs and keeping some of them alive. Under these ( 10 ) wp712-09 circumstances, the impugned order needs to be interfered with. 13. In the result, the petition is allowed. The impugned order is set aside. It is made clear, however, that the respondents would be at liberty to file fresh application for consideration of certain issues as preliminary issues, after all the issues framed by the learned Civil Judge, which shall be so framed at an early date. The parties may be at liberty to agitate all the disputed questions. All the questions are kept open. The learned Civil Judge is directed to consider the application filed by the respondents within span of four (4) months if so filed, after framing of the issues. The parties are directed to appear before the learned Civil Judge on 24th February, 2010 and thereafter, the issues be framed within two (2) weeks. The applications pending before the Civil Court may be also disposed of by the Civil Judge (S.D.) simultaneously while framing the issues. Rule made absolute accordingly. ( 11 ) wp712-09 14. Learned counsel for the petitioner seeks withdrawal of civil application No. 309/2010. The civil application is allowed to be withdrawn and dismissed as such. [ V.R. KINGAONKAR ] JUDGE NPJ/wp712-09