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Ramabai Govind Vs. Anant Daji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 39 of 1942
Judge
Reported inAIR1945Bom338; (1945)47BOMLR447
AppellantRamabai Govind
RespondentAnant Daji
Excerpt:
civil procedure code (act v of 1908), section 54, order xx, rule 18(1)-decree for partition lands paying revenue to crown-application to court to send papers to collector for partition-whether such application is governed by limitation-indian limitation act (ix of 1908), articles 181 and 182.;where a decree for partition of lands paying revenue to the crown is passed by the court in the form laid down by order xx, rule 18(1), directing the collector, under section 54 of the civil procedure code, 1908, to effect the partition, an application made to the court that the papers be sent to the collector for effecting the partition, even if made in the form of a darkhast application, is a proceeding in the suit and not an application to execute the decree, and there is no period of limitation.....lokur, j.1. this appeal arises out of proceedings for the execution of a partition decree obtained by the respondent's father daji chimnaji against his brother dhondi chimnaji and his son govind dhondi on january 13, 1928, in the court of the first class subordinate judge at ahmednagar. the decree declared that the brothers daji and dhondi had each a half share in the family property consisting of lands, houses, moveables and outstandings. it directed under section 54 of the code of civil procedure that the lands, which were assessed to the payment of revenue to the crown, should be partitioned by the collector or any gazetted subordinate of the collector deputed by him in that behalf, and for partition of the rest of the property a commissioner was appointed. on receipt of the.....
Judgment:

Lokur, J.

1. This appeal arises out of proceedings for the execution of a partition decree obtained by the respondent's father Daji Chimnaji against his brother Dhondi Chimnaji and his son Govind Dhondi on January 13, 1928, in the Court of the First Class Subordinate Judge at Ahmednagar. The decree declared that the brothers Daji and Dhondi had each a half share in the family property consisting of lands, houses, moveables and outstandings. It directed Under Section 54 of the Code of Civil Procedure that the lands, which were assessed to the payment of revenue to the Crown, should be partitioned by the Collector or any gazetted subordinate of the Collector deputed by him in that behalf, and for partition of the rest of the property a Commissioner was appointed. On receipt of the Commissioner's report, the decree was made final on July 29, 1930, regarding all the property excepting the lands. There was an appeal to this Court against the final decree in respect of accounts only, and it was slightly modified on November 110, 1936. Both the decree-holder Daji and the judgment-debtors Dhondi and Govind having died, Daji's son Anant filed this darkhast against Govind's widow Ramabai on March 4, 1939, for recovering by partition his half share in the property in suit in execution of the decree obtained by his father. We are not concerned with the houses, the shop, the moveables or the outstandings in this appeal, but only with the partition of the lands, which has to be effected by the Collector or his gazetted subordinate, and with regard to it was contended that the darkhast was time-barred. It is evident that the appeal which was decided by this Court on November 10, 1936, cannot save the bar of limitation, since it was against the final decree which did not touch the lands but effected a partition in the rest of the property only. This is fairly conceded on behalf of the decree-holder in view of the clear ruling in Jacinto v. Fernandez : AIR1939Bom454 . Relying upon the same ruling, the lower Court held that the so-called darkhast was only an application to the Court to send the decree and the papers to the Collector as directed in the decree itself, and that there being no provision in the Indian Limitation Act relating to such an application, the darkhast was not time-barred. The papers were, therefore, ordered to be sent to the Collector for partition of the lands in suit, and it is against that order that the judgment-debtor has presented this appeal.

2. In Jacinto v. Fernandez Beaumont: C. J. held that when a Court passed a decree for partition of lands assessed to the payment of revenue to the Crown and referred it to the Collector to carry out the partition, the Court's duties were at an end and that the darkhast asking the Court to send the papers to the Collector was not an application in execution. He took the view that sending the papers to the Collector was only a ministerial act which the Court should have done without being asked. He also took judicial notice of the practice in the mofussil to make an application for that purpose in the form of an ordinary darkhast and said that he saw no particular objection to continue that practice as the form of the application did not determine its real nature, It was, therefore, held that such an application was not governed by any article of the Indian Limitation Act and would never be time-barred. In this, view the darkhast application was only a reminder to the Court to do its duty.

3. This ruling, which is on all fours with the present case, was followed in Vishnu Janardan v. Mahadev Keshav : (1941)43BOMLR971 . But Mr. Desai for the appellant challenges the correctness of those rulings on the ground that certain provisions of the Code of Civil Procedure were then overlooked. His argument may be briefly stated. A partition decree may be partly final and partly preliminary. The power to pass a preliminary decree in a partition suit is given under Order XX, Rule 18(2), in respect of all property except lands assessed to the payment of revenue to the Crown. When such a preliminary decree is passed, it may make further inquiry or appoint a Commissioner under Order XXVI, Rule 13, Civil Procedure Code, to carry out its directions. After such inquiry or on receipt of the Commissioner's report under Order XXVI, Rule 14, a final decree is to be passed. All the proceedings till then are proceedings in the suit. But in the case of lands assessed to the payment of revenue to the Crown, Section 54 provides that the partition shall be made by the Collector or his gazetted subordinate deputed by him in that behalf. Once such a decree is passed under Order XX. Rule 18(2), nothing further remains to be done by the Court and the decree must, therefore, be deemed to be final. That sub-rule does not permit a preliminary decree to be passed as under Sub-rule (2). As observed by Beaumont C.J. in Jacinto v. Fernandez, (at p. 923) 'when an order in that form is made the Court's duties are finished, and it is for the Collector to partition the property'. It follows, therefore, that such a decree being final, an application by the decree-holder to carry it out is an application in execution. The Legislature has made this clear by placing Section 54 under the heading 'Procedure in execution' in Chapter II of the Code of Civil Procedure which deals with 'Execution', Section 51, which is the first section under that heading, provides for different modes of executing a decree and says in Clause (e) that subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree in such other manner as the nature of the relief granted may require. When the holder of a decree desires to execute it, Order XXI, Rule 10, of the Code, requires him to apply to the Court which passed the decree or to the officer appointed in this behalf. In the case of a decree for partition of revenue paying lands, the officer so appointed by Section 54 is the Collector and the decree-holder may apply for its execution either to the Court or to the Collector. If the application is made to the Court, then under Section 51(e) it will send it to the Collector. The Collector will then not only divide the lands in accordance with the decree, but as held in Parbhudas Lakhmidas v. Shankarbhai I.L.R (1886) Bom. 662 also deliver possession of the shares to the respective allottees. As pointed out by Sargent C.J. in that case, Section 265 of the Code of Civil Procedure, 1882 (corresponding to Section 54 of the present Code), does not provide for the Collector's reporting to the Court. This shows that the Court has not to make any final decree on receipt of a report of the partition by the Collector as it does on receipt of the Commissioner's report in respect of the partition of other kinds of properties under Order XXVI, Rule 14. This, also shows that the decree is already final and the subsequent proceedings are proceedings in execution of that decree. If no application is made for its execution within the time allowed by Article 182 of the first schedule to the Indian Limitation Act, then its execution becomes time-barred. Mr. Desai also points out that this view does not involve any hardship or result in any substantial injustice to the decree-holder, since as held in Jagu Babaji v. Balu Laxman I.L.R (1912) Bom. 307 : 14 Bom. L.R 1198 even if the decree is not sent to the Collector and is allowed to be time-barred, it will still be open to the decree-holder to file a fresh suit for partition.

4. All this reasoning is apparently cogent, and if accepted, the decision of the division bench in Jacinto v. Fernandez, which is followed in Vishnu Janardan v. Mahadeo Keshav : (1941)43BOMLR971 , may have to be overruled. Hence this appeal has been placed before a bench of three Judges. The gist of Mr. Desai's argument is that a decree for partition passed under Order XX, Rule 18(1), is a final decree and can be executed through the Collector only upon an application made by a party to the decree. After fully considering all the pros and cons we have come to the conclusion that the reason for distinguishing between a preliminary and a final decree does not arise in such a case, since whether such a decree be regarded as preliminary or final, there is no period of limitation prescribed for getting the property partitioned by the Collector as directed in the decree.

5. The peculiar character of such a decree is shown by the circumstance that though it is not merely declaratory, it is also not executable by the Court that passed it. Various considerations can be referred to as suggesting that such a decree is in the nature of a preliminary decree. It is true that in Order XX, Rule 18(2), of the Code of Civil Procedure, the decree is not expressly described as preliminary. But let us compare it with other decrees for partition in order to obtain an indication of its true nature. Sub-rule (2) has in such cases expressly empowered the Court to pass a preliminary decree where the partition or separation cannot be conveniently made without further inquiry. The preliminary decree would in such a case declare what share the plaintiff is entitled to, and the final decree would specify the particular properties which are to correspond to such a share and are to be made over to the decree-holder, if necessary, by proceedings in execution. The decree contemplated in Sub-rule (2) is very much more of the nature of a preliminary than of a final decree, though further proceedings are left to the Collector under Section 54, the obvious reason being that revenue authorities are considered more conversant and better qualified to deal with such matters and are expected to be able better to safeguard the interests of Government with regard to the revenue assessed on the lands to be partitioned.

6. Another consideration is furnished by the language of Order XXVI, Rule 13, which says:

Where a preliminary decree for partition has been pasted, the Court may, in any case not provided for by Section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

7. In other words, in the case of a preliminary decree for partition, which is provided for by Section 54, no Commissioner can be appointed for effecting a partition, since under that section the partition is to be effected by the Collector. Had such a decree not been regarded as preliminary, the words 'in any case not provided for by Section 54' in the above rule would be superfluous. The Legislature probably used these words in the view that a decree passed Under Order XX, Rule 18(2), is in its nature preliminary. In a partition suit what the plaintiff claims is not a mere declaration of his share in the joint property, but its actual division and recovery of possession of the share allotted to him. Until such division is effected, recovery of possession is not possible, and till then the decree merely declaring the shares and directing a division by the Collector may well be taken to be only preliminary. A final decree, unless it is merely declaratory, ought to be capable of execution, and for that purpose it must direct the judgment-debtor to do or not to do some act. Execution follows only upon the judgment-debtor's failure to comply with such direction. In the absence of such a direction to the judgment-debtor, it is difficult to look upon the decree as final. He must be given an opportunity to obey the decree without its being executed against him. This opportunity he will not get so long as the decree is only preliminary. A decree under Order XX, Rule 18(2), does not direct the judgment-debtor to obey it. It declares the shares of the different sharers and directs the partition to be made by the Collector. It is only after such partition is made by the Collector that the judgment-debtor can be called upon to put the decree-holder in possession of the share allotted to him. It is only at that stage that the decree can be regarded as having become final and capable of execution : (compare the final decrees in suits on mortgages or suits for accounts or suits for mesne profits). According to the prevailing practice, pointed out in Parbhudas Lakhmidas v. Shankarbhai, the Collector, without waiting for the final decree being formally drawn up, delivers to the different sharers possession of the shares respectively allotted to them. It may be in this view that Order XXVI, Rule 13, has taken such a decree to be a preliminary decree, and specially mentioned it as an exception to those preliminary decrees in which Court is given power to appoint a Commissioner to make the partition.

8. This view finds support in the instructions contained in the Civil Manual issued by this Court for the guidance of civil Courts. In Rule 1 in ch. XII of the first volume of the Manual (at p. 145, 1940 edition) preliminary decrees are divided into two classes, those in which further action for final decrees is to be taken forthwith by the Courts suo motu without any application from a party and those in which subsequent proceedings for passing final decrees do not arise as a matter of course. The former are directed to be treated as pending and shown as such in the Monthly Returns and the records of such suits are to be retained in the original Court until final decrees are passed therein, while the latter are to be treated as disposed of and shown as such in the Monthly Returns and the records should be forwarded to the Record-keeper of the District Court and may be called for when subsequently required. A partition decree Under Order XX, Rule 18(2), is included in the former class of preliminary decrees and one under Order XX, Rule 18 (1), is included in the latter class, be it noted, of preliminary decrees. These instructions are being followed ever since the Code of Civil Procedure of 1908 was enacted, and a partition decree, whether under Sub-rule (1) or under Sub-rule (2), is classed as a preliminary decree.

9. If for these various reasons such a decree be regarded as preliminary, it would follow that an application made by a party to a decree Under Order XX, Rule 18(2), asking that the papers should be sent to the Collector for effecting a partition as directed in it is of the nature of a mere proceeding in the suit rather than an application to execute the decree, and that there is no period of limitation for making it.

10. On the other hand, it must be said that such a decree does not fall within the definition of a preliminary decree as given in the Explanation to Section 2, Sub-section (2), of the Code of Civil Procedure. It says:

A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit.

The relation of a preliminary to a final decree was considered by Rankin C.J. in the full bench case of Talebali v. Abdul Aziz I.L.R (1929) Cal. 1013 where he said (p. 1026):

Under the present Code suits to redeem or to enforce a mortgage, suits for partition, partnership suits, suits for accounts and other classes of suits are now disposed of by means of two decrees-the preliminary decree, which usually settles the rights of the parties, and in this sense is final cf. Rahimbhoy Habibbhoy v. O.A. Turner I.L.R (1890) Bom. 155 : S.C.L 18 I.A. 6 but which looks forward to a further decree to be made after the rights of the parties, thus declared, have been worked out by subordinate enquiries and or other means.

11. But in the case of a decree under Order XX, Rule 18(1), of the Code of Civil Procedure, the Court is not even now expressly required to pass any further decree. When the Court passes a preliminary decree under Sub-rule (2), it appoints a Commissioner under Order XXVI, Rule 13, to effect a partition, after receiving his report, the Court is to pass a final decree under Order XX, Rule 14(3). There is no corresponding provision in the Code that after making a partition the Collector should report to the Court in order that it may pass a final decree. In fact no other final decree is ever passed, after a decree is once passed Under Order XX, Rule 18(1) A preliminary decree cannot for ever remain a preliminary decree, but contemplates a final decree upon which the decree-holder may take out execution, a term which in decrees for partition of property must include delivery of possession. The Collector cannot pass a final or indeed any other decree in a civil suit for partition, and yet the Civil Court is not required by the Code to pass any further decree or to make its decree final at any stage. Upon this footing the first and only decree to be parsed by the Court would be a final decree. As pointed out by Beaumont C.J. in Jacinto v. Fernandez, when an order in the form prescribed in Order XX, Rule 18(2), is made, the Court's duties, are finished, though, as held in Dev Gopal Savant v. Vasudev Vithal Savant I.L.R (1887) Bom. 371, the Court is not deprived of its judicial control of its decree. But that control is very limited. It is only if the Collector contravenes the decretal order, or transgresses the law or otherwise acts ultra vires, or refuses to carry out the decree, that his action is liable to be controlled and corrected by the Court which passed the decree. Apart from this limited control the Collector can give effect to the partition made by him, without waiting for confirmation by the Court, and deliver possession of the shares to the respective sharers. Thus the Court having nothing further to do 'with the decree passed by it Under Order XX, Rule 18(2), Beaumont C.J., in Jacinto v. Fernandez, (at p. 922), described the order directing the partition of the lands assessed to Government revenue to be effected by the Collector as a final decree.

12. If on this line of reasoning the decree be regarded as final, it must be recalled that not every final decree is capable of execution. A merely declaratory decree, though final, is by its very nature, incapable of execution. So, too, is a decree under Order XX, Rule 18(2), of the Code of Civil Procedure. It merely declares what are the shares of the parties in the suit lands assessed to Government revenue, and by whom the partition is to be effected, but it does not embody a direct order to the Collector or to the judgment-debtor to do anything. From this point of view it is merely declaratory. It is true that Section 54 appears in the Civil Procedure Code under the heading 'Procedure in execution.' That section may have been placed there only to show that such a decree is incapable of execution by the Court, and that if a party wants a partition effected as directed by the decree, it is only the Collector who can effect it. For that purpose he must request the Court to send the decree to the Collector. The sending of the decree to the Collector is only a ministerial act and not execution of the decree. Mr. Desai's argument that the Collector is an officer appointed by Section 54 to receive applications for the execution of such decrees under Order XXI, Rule 10, of the Code of Civil Procedure, is not tenable. The officer contemplated by that rule is an officer like the Clerk of the Court or Nazir, authorised by the Court to receive applications. The effecting of partition by the Collector carrying out an order already passed by the Court is not 'execution of the decree' as contemplated by that expression in the first column of Article 182 of the first schedule to the Indian Limitation Act. Even if the decree be regarded as final, this article will not avail the appellant, and there is no reason to doubt the correctness of the view taken in Jacinto v. Fernandez that an application to send the decree to the Collector for effecting a partition, being only a request to the Court to do a ministerial act, is not governed by the said Article 182.

13. Nor is such an application governed by Article 181, whether the decree is taken to be. preliminary or final. If the decree be regarded as preliminary, then as pointed out by Engineer J. in Jesinglal v. Gangadhar (1937) 40 Bom. L.R. 507 it is only in the case of preliminary decrees in mortgage suits that an application for making it final is expressly required by Order XXXIV. He says that provisions in the Code of Civil Procedure in respect of partition and partnership suits are different and refers to various provisions which require the Court passing the preliminary decree in such suits to take the necessary-steps suo motu. But there is no provision which requires an application to be made to the Court to send a decree under Order XX, Rule 18(2), to the Collector, and, therefore, Article 181 is not applicable to such an application.

14. If, on the other hand, the decree be regarded as final, it is not executable by the Court, as already pointed out, and as the Code does not provide for an application to have it sent to the Collector, such an application, even if made in the form of a darkhast application, is not governed by Article 181 or any other article of the Indian Limitation Act.

15. The appeal is, therefore, dismissed with costs.

Weston, J.

16. The material facts of this case are that on January 13, 1928, the father of the present respondent obtained a decree for partition against two members of his family, who are now represented by the widow of one of them. Part of the joint property consisted of lands assessed to the payment of land revenue, and the decree made directed partition of the lands to be made by the Collector as required by Section 54 of the Code of Civil Procedure and was in the form laid down by Order XX, Rule 18(2). In respect of other joint family property, the decree was the ordinary preliminary decree for partition of the form contemplated in Order XX, Rule 18(2), and this part of the decree was made final on September 29, 1930. There was an appeal to the High Court against this final decree relating to property other than the agricultural lands. This appeal was decided on November 10, 1936, when the final decree was varied, but nothing was done in the matter of partition of the lands until March 4, 1939, when the present respondent filed an application, which in terms was a darkhast, asking that partition should be effected of the half share in the agricultural lands, to which by the decree of January 13, 1928, his father was entitled, and that possession of the half share should be given to him from the present appellant. The application was opposed mainly on the ground that it was barred by limitation as filed more than three years after January 13, 1928, the date of the decree, In view of direct authority of this Court on the point, Jacinto v. Fernandez : AIR1939Bom454 the learned First Class Subordinate Judge held that it was the duty of the Court, irrespective of application by a party, to send the decree to the Collector for execution, that the act of so sending the decree was a ministerial act of the Court, that no execution application was necessary, and that no question of limitation arose. He therefore overruled the abjection and directed the papers to be sent to the Collector for partition being made of the lands.

17. There can be no doubt that, on the authority of Jacinto v. Fernandez, the learned Judge was bound to dispose of the matter as he did, but in this appeal the correctness of the decision in that case has been questioned, and the matter therefore has come: before a full bench. The question to be decided may be stated as follows:

Whether further proceedings on a decree in the form set out in Order XX, Rule 18(1), can take place when the decree or intimation of the decree has not been sent to the Collector, and no steps are taken by a party to the decree, within three years of the date of the passing of the decree

18. The substantive provision, which requires that partition of an estate or separation of a share in an estate assessed to the payment of revenue to the Crown shall be made by the Collector, is Section 54 of the Civil Procedure Code. This section appears in Part II of the Code, which bears the heading 'Execution,' and it is one of four sections under the sub-heading 'Procedure in Execution.' The section, however, bears no relation to other sections in Part II, and in particular it bears no relation to Section 68 and following sections, which deal with delegation to the Collector of power to execute decrees against immovable property. The only provision of the Code other than Order XX, Rule 18, which refers to Section 54, appears to be Order XXVI, Rule 13. This provides:

Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

19. Upon this an argument has been founded, that the decree in the form provided for by Order XX, Rule 18(1), must be deemed to be a preliminary decree, that the further proceedings before the Collector are therefore of the nature of proceedings subsequent to preliminary decree but prior to final decree, and that no question of limitation to such proceedings can arise. On the other hand, by reason of the position of Section 54 in the Code, and by reason of the omission in Clause (1) of Order XX, Rule 18(1), of the word preliminary, while Clause (2) of that rule provides expressly that for partition of other immoveable property there is to be a preliminary decree, it is claimed that the proceedings subsequent to the decree made in the form provided for by Order XX, Rule 18(1), are execution proceedings, that the provisions of the Indian Limitation Act, and in particular Article 182 or Article 181, apply ; that the application made in the present case to the Court was, as in fact, it purported to be, an execution application, or, if not, an application under the Code, and that, as it was made more than three years after the decree was passed when no earlier application had been made, it was barred by time.

20. Under the present definition of 'decree' in Section 2 of the Civil Procedure Code, a decree must be final or preliminary, or partly final and partly preliminary It seems to me that a decree can be party final and partly preliminary only when it deals with different matters in different ways, and that a decree or the part of a decree in the form provided for by Order XX, Rule 18(2), must be either final or preliminary. While no doubt the wording of Order XXVI, Rule 13, lends support to the view that such decree or part is preliminary, the question must be decided, if it is necessary to be decided, on the definition given in the Explanation to Section 2(2) of the Code. This Explanation states:

A decree is preliminary when further proceedings have to be taken, before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit.

This Explanation did not appear in the definition of decree in the Code of 1882. Section 396 of that Code provided that in suits, in which partition of immovable property not paying revenue to Government was sought, the Court after ascertaining the shares of the parties might appoint Commissioners tot effect division and to allot shares to the parties and the decree of the Court followed the report of the Commissioners in the same manner as under Order XXVI, Rule 14, of the present Code, a final decree follows a preliminary decree under Order XX, Rule 18(2). Section 265 of the Code of 1882 was practically identical with Section 54 of the present 'Code, and appeared with other sections under the heading 'of the mode of executing decrees.' The Code of 1859 had no section corresponding to Section 396 of the Code of 1882, but Section 225 was as follows:

If the decree be for the division of an estate, or for the separate possession of a share of an undivided estate paying revenue to Government, the division of the estate or the separation of the share shall be made by the-Collector under the orders of the Court according, to the rules in force for the partition of an estate paying revenue to Government.

It seems to me not improbable that it was by reason of the words I have underlined, although they were later omitted, that Section 265 of the Code of 1882 and Section 54 of the present Code found place in chapters dealing with execution. Also they may explain the practice still existing where by an application in the form of an execution application is made to the Court after a decree under Order XX, Rule 18(1), has been made, and what is called 'vatap warrant' is then sent by the Court to the Collector. On this account I do not attach much importance to the argument based upon the position of Section 54 in Part II of the present Code.

21. The division of the procedure, by which a plaintiff obtains his remedy from the Court, into suit and execution proceedings, is a division which with some justification may be called artificial. In a declaratory suit the plaintiff obtains the whole of his relief in the suit. There are no execution proceedings. Ordinarily, following a decree, there is a written application for execution and further formal proceedings follow that application, but in a money suit there may be execution by arrest simultaneous with the passing of the decree and upon the oral request only of the decree-holder. Inquiry into mesne profits under the Code of 1882 was a proceeding in execution. Under the present Code it has been transferred to the proceedings in suit. The particular relief which is sought may not of itself be a safe guide to classification of the proceedings necessary to secure it.

22. I find myself, with respect, in agreement with the opinion of the learned Chief Justice in Jacinto v. Fernandez that a decree in the form of Order XX, Rule 18(7), must be regarded as a final decree. Applying the test of the definition in the Explanation to Section 2(2), it is difficult to see how the suit is not completely disposed of by this decree, There is no provision for a further decree to be made by the Court, and existing practice, as I understand it, does not support the suggestion that the ultimate receipt by the Court of the Collector's report that a division has been made and possession given is to be taken as the passing of a final decree. The Court accepts the report as finally disposing of all proceedings. It has no power to vary the report and it has little or no control over the Collector's proceedings. It is true it has been held in several cases of this Court-Dev Gopal Savant v. Vasudev Vithal Savant I.L.R (1887) Bom. 371 Ganoji Utekar v. Dhondu I.L.R (1890) Bom. 450 Krishnaji v. Damodar (1903) 5 Bom. L.R. 648 and Ramchandra Dinkar v. Krishnaji pakharam I.L.R (1915) Bom. 118-that the Court may interfere when the Collector has made a mistake, but these decisions in no way assist the argument that a further final decree is to be made. I am not impressed by the suggestion that a final decree is made by the Collector or must be deemed to be made by the Collector, because, if the decree was one under Clause (2), and not Under Clause (2) of Order XX, Rule 18, a final decree would follow. When making partition the Collector does not purport to make a final decree. He proceeds from division by metes and bounds to delivery of possession as in one proceeding, and not as if he was conducting two distinct proceedings, one equivalent to a proceeding in suit, and the other to a proceeding in execution see Parbhudas Lakhmidas v. Shankrbhai I.L.R (1886) Bom. 662. In my opinion, therefore, the decree made in the form of Order XX, Rule 18 (1), technically must be classified as a final decree.

23. The question, however, remains whether the proceedings before the Collector, or the application to the Court that what Section 54 requires may be done, are proceedings in execution. It is urged that, once the decree is held to be a final decree, all further proceedings to implement the decree must be execution proceedings. I am inclined to think that under the Code of 1859 the proceedings before the Collector and also the application to have those proceedings sent to the Collector might properly be termed proceedings in execution, for there the Collector acted under the control of the Court. It was remarked in Ramchandra Dinkar v. Krishnaji Sakharam, 'the Collector acts ministerially in executing the Court's decree.' This observation was based on Dev Gopal Savant v. Vasudev Vithal Savant (at p. 376) which no doubt was a case under the Code of 1882, but may, I think, have been influenced by the earlier Code. Further this last was not a case where the Court interfered with the conduct of the proceedings by the Collector, although in Ram-chandra's case the Court directed the Collector to reopen the partition and adjust the shares according to the decree. It seems to me with great respect that under the present Code the Collector cannot be said to be a ministerial officer of the Court. No doubt he is bound by the decision of the Court, and, in case of disregard of the terms of the decree, the Court may draw his attention to mistakes committed. I do not think it essential that such action of the Court should be referable to Section 47 of the Code, as in effect was held in Krishnaji v. Damodar (1903) 5 Bom. L.R. 648. The inherent powers of the Court under Section 151 could be invoked for this purpose see Kulada Prasad Tewari v. Sadhu Charan Tewari (1917) 3 P.L.J. 435 although this was not a case under Section 54 of the Code.

24. I have referred earlier to the absence of reference to Section 54 in Sections 68 to 72, and there is also the restriction of the third schedule to the Code, which is headed 'Execution of decrees by Collector,' to decrees transferred to the Collector under Section 68. These facts seem to me of some significance. It is true that, except perhaps paragraph 13 of the third schedule, the terms of the third schedule are not appropriate to proceedings to effect partition, but the omission from the schedule of rules applicable to partition proceedings does suggest a distinction between the procedure under Section 54 and the procedure of execution of decrees by the Collector. I do not think that analogy can reasonably be drawn between the position of the Collector acting under Section 54 and that of a transferee Court under Section 39 and following sections. The Court has no discretion under Section 54, as it has under Section 39, and it retains no powers such as those mentioned in Order XXI, Rule 26.

25. I think therefore that it is not possible to refer the action of the Collector under Section 54 to execution of a decree by the Court itself through a ministerial officer, or to transfer off a decree for execution to the Collector. The Collector's procedure is something outside the ordinary provisions of the Code. It consists of the combination of what, but for Section 54, would be a proceeding in a suit and a proceeding in execution. This one proceeding is conducted by an executive officer with a wide range of discretion, not subject, at any rate ordinarily, to control by the Court. It seems to me therefore that the circumstance that technically the Court's decree is a final decree is not reason sufficient for insisting that what follows, a procedure not comparable with other procedure under the Code, must be classified as execution, and therefore must attract such disabilities as are imposed by the Limitation Act. There appears not reason of expediency against the view I take. The filing of a suit for partition affects separation of status, but parties may not wish at the time to proceed to partition by metes and bounds. There is no period of limitation for the making of a final decree consequent on a preliminary decree under Order XX, Rule 18(2) see Dwarka Nath Misseir v. Barinda Nath Misser I.L.R (1895) Cal. 425 and Ramanathan Chetty v. Alayappa Chetty I.L.R (1929) Mad. 378 and when to the division by metes and bounds is tacked the giving of separate possession, as it is in the proceedings before the Collector, I think similar freedom from the restrictive effects of rules of limitation is not an undesirable result. In my opinion, therefore, the proceedings before the Collector should be regarded as something outside the Civil Procedure Code, to which the term 'execution proceedings' should not be applied, and for the prosecution of which no rule of limitation is applicable. I agree with the view expressed in Jacinto v. Fernandez that the action of the Court in sending the decree or a vatap warrant to the Collector is a ministerial act. No application is required by the Code to be made to the Court and, if application is made by a party, it is not an application under the Code of Civil 'Procedure to which Article 181 of the Indian Limitation Act will apply. I would answer in the affirmative the question I propounded at the beginning of this judgment, and I agree with the order proposed.

Rajadhyaksha, J.

26. I agree with the judgment delivered by my learned brother Mr. Justice Lokur. Whether the decree for partition under Order XX, Rule 18(2), of the Code of Civil Procedure, is regarded as preliminary or final, I have no doubt that there is no bar of limitation to the application being sent to the Collector in order that he may carry out the directions given in the decree. I therefore agree with the order proposed by my learned brother.


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