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Timmanna Parmeshwar Bhat Vs. Govind Ganpati Bhat - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 403 of 1925
Judge
Reported in(1926)28BOMLR523; 94Ind.Cas.656
AppellantTimmanna Parmeshwar Bhat
RespondentGovind Ganpati Bhat
DispositionAppeal allowed
Excerpt:
decree-execution-collector executing decree-collector going outside decree- court can refer back to collector for re-adjusting partition made.; where the collector once effects a partition in accordance with the decree, it is not competent to the court to refer the case back to him for re-partition. but if the collector disregards the terms of the decree and divides the property in oontravention of its terms, the court is entitled to refer the case baok to the collector to partition the property in aooordanoe with the terms of the decree.; bhimangauda v. hanmant (1918) 20 bom. l.r. 411, explained.; the collecctor, when asked to partition lands in accordance with a decree, must follow the terms of the decree; he is not at liberty to read the decree together with the judgment, so that he..........the case back to the collector to partition the property in accordance with the terms of the decree. it may be that the decree does not conform to the judgment. if that is the case, it is very strange that although the decree was passed in 1914, and although an appeal was filed against that decree, it should not have been discovered until the present time that corrections were required in the decree. at present we have no application before us to amend the decree, and we can only lay it down as a correct principle that the collector, when asked to partition lands in accordance with a decree, must follow the terms of the decree, and he is not at liberty to read the decree together with the judgment so that he partitions the lands in a manner which is not contemplated by the.....
Judgment:

Norman Macleod, Kt., C.J.

1. A partition decree was passed in Suit No. 306 of 1911 on April 8, 1914. By that decree it was declared that plaintiff along with defendants Nos. 4 and 5 was entitled to ones sixth share in the whole of the property at Gokaran, other than the house-site situate in Survey No. 27, to one-sixth share in Survey Nos. 1 and 43 in addition to Survey Nos. 51 and 54, to one acre in Survey No. 52 and two acres and two gunthas in Survey No. 36 all situate in the village of Kadekod. The lands were to be got partitioned through the Collector, and the house was to be got partitioned through the Commissioner.

2. The Collector endeavoured to carry out the terms of the decree, but he seems to have found some difficulty in doing so, with the result that he has not followed the direction in the decree. Fur instance, he allowed the plaintiffs four acres and twelve gunthas in Survey No. 1 in Kadekod, although the whole area was five acres and one guntha and plaintiffs were held to be entitled to one-sixth only.

3. We can only gather that the Collector was reading the decree together with the judgment, and thought that the judgment was right and that the decree was wrong.

4. The present appellants, defendants Nos. 28 to 30 in the trial Court, raised objections, and asked the Subordinate Judge to reopen the partition. An objection was taken that once the Collector had effected a partition the Court could not send the case back to him for re-partition. But it seems to me that the case referred to, Bhimangauda Kenadgauda Patil v. Hanmant Rangappa Patil : AIR1918Bom206 , merely decided that if the Collector carries out the terms of the decree and divides the property, a party who is not satisfied with the division cannot ask the Court to inter-fere with the partition effected by the Collector. But if the Collector disregards the terms of the decree and divides the property in contravention of its terms, clearly the Court is entitled to interfere. We think then that the Subordinate Judge was right in referring the case back to the Collector to partition the property in accordance with the terms of the decree. It may be that the decree does not conform to the judgment. If that is the case, it is very strange that although the decree was passed in 1914, and although an appeal was filed against that decree, it should not have been discovered until the present time that corrections were required in the decree. At present we have no application before us to amend the decree, and we can only lay it down as a correct principle that the Collector, when asked to partition lands in accordance with a decree, must follow the terms of the decree, and he is not at liberty to read the decree together with the judgment so that he partitions the lands in a manner which is not contemplated by the decree. We allow the appeal and restore the decision of the Subordinate Judge with costs throughout.

Coyajee, J.

5. I agree.


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