(1) The short question involved in this case is where the remand made by the District Judge to the Civil Judge of a matter relating to execution of a partition decree was improperly made. The material facts are these :
(2) In a suit for partition, the plaintiff was declared to be entitled to a third share in the properties which framed the subject matter of the suit. When an execution application was presented for execution of that partition decree, the Civil Judge dismissed the execution application on the ground that the partition, if made, would create, a fragment prohibited by the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.
(3) From this order made by the Civil Judge, there was an appeal to the District Judge and in that appeal there was a consent order and one part of that consent order was that the question whether the decree-holder could be allotted one or more lands in their entirety should be considered by the executing Court.
(4) When the matter went back to the executing Court, the papers were transmitted to the Collector so that there may be a partition of the properties under Section 54 of the Code of Civil Procedure. Such transmission became necessary since the lands are agricultural lands paying land revenue to the Government.
(5) On receipt of the records, the Collector refused to make the partition being of opinion that the partition would create a fragment in disobedience to the provisions of the Act.
(6) When the papers came back to the Civil Judge, he made an order directing the papers again to be sent to the Collector so that the Collector might determine the compensation which might be paid to the decree-holder for the share which had been allotted to him by partition decree.
(7) Against this order, the decree-holder appealed and it was argued before the District Judge who heard that appeal that the Civil Judge had failed to implement the consent order which had been previously made in the appeal according to which one of the questions to be considered was whether there was a likelihood of the creation of a fragment if a partition was made in the ordinary way or, whether on or more lands could not be allotted in their entirety to the decree-holder. This argument was accepted by the District Judge directing the Collector to determine the compensation payable to the Collector in accordance with the directions to the consent order after a consideration of all the aspects of the case.
(8) It is against this order of remand made by the District Judge that this appeal is preferred.
(9) It was argued before me by Mr. Malimath that since the Civil Judge made order directing the Collector to determine the compensation payable to the decree-holder (plaintiff), it was no longer within the competence of anyone and not even of the District Judge to retrace the step so taken and direct the Collector to make a partition in accordance with the terms of the consent order. The postulate was that since a partition made under Section 54 of the Code of Civil Procedure by the Collector is incapable of rectification by the Court which directed that partition to be made, for the same reasons which oust the jurisdiction of the Civil Court in that way, instructions once given to the Collector for partition to be made in a particular way can never be recalled or varied and that partition should be made only in accordance with the instructions so communicated whether or not the partition has been completed.
(10) It is not necessary for me on this occasion to investigate into the correctness of the proposition that once a partition is made by the Collector under Section 54 of the Code of Civil Procedure that partition so made is beyond the superintendence of the Civil Court and that in no case that Court can exercise jurisdiction of the rectification of any kind of mistake committed by the Collector in making the partition under Section 54 of the Code of Civil Procedure. On this question it is really not necessary for me to express any opinion in this case, this case one in which the Collector has not yet made any partition. Indeed, the Collector refused to make a partition on the ground that there would be a fragment and it is that refusal which necessitated the issue of instructions by the Civil Judge to the Collector that there should be a determination of compensation.
(11) Mr. Malimath did not dispute the power of the Civil Court to issue that instruction and to direct a partition in some other way than that which was originally proposed. If Mr. Malimath cannot dispute as he did not dispute that the Civil Judge had the power to direct the Collector to make a determination of the compensation to be paid to the decree-holder, that concession which Malimath had to make contradicts his argument that once the papers leave the hands of the Court for being transmitted to the Collector for making a partition, the Court would become devoid of power to control and regulate the partition thereafter whatever, may be the circumstances in which the exercise of that power may become necessary.
Whatever may be the correct view to make the in regard to the partition to be made by the Collector under Section 54 of the Code of Civil Procedure, no one can say that if that partition has not been made or commenced, the Court has no power to recall the papers transmitted to the Collector if they have been wrongly transmitted or direct when a Collector refuses to make a partition, a different kind of partition or a partition which was directed to be made by the decree or by an order like the one which was made by the lower appellate Court on the earlier occasion in this case. If as in this case the Civil Judge did not issue instructions to the collector in accordance with the consent order but issued some other kind of instruction at variance with that consent order, the Civil Judge had undoubtedly the power to recall those erroneous instructions contradicted the notice of those instructions contradicted in the consent order. Even if he did not, it is clear that the appellate Court, when it is brought to its notice that the Collector was asked to make a partition in a manner entirely at variance with the decree, has the power to reverse the Civil Judge and to direct the Civil Judge to issue the instructions prescribed by the decree or by any subsequent order or other proceeding.
(12) Any other view would leave the parties entirely at the mercy of the Collector and in conceivable cases if the Collector refuses to make a partition unreasonably or perversely, the acceptance of the argument propounded by Mr. Malimath would lead to the devastating consequence that the decree would become dead or incapable of execution, the Court not having the power to undo the harm or mischief caused by the proceedings of the Collector. A view which may lead to such perilous consequences does not commend itself to me.
(13) I, therefore, dismiss this appeal with costs.
( 14) Appeal dismissed.