1. The question which the Full Bench is called upon to answer is whether the Court which has passed a decree for partition to which Section 54 of the Code of Civil Procedure applies and has sent it to the Collector for the purpose of effecting the partition has power to hear objections to the order of partition actually passed. The section reads as follows:
Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Crown, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares of such estates.
2. In Chinna Seetayya v. Krishnavenamma I.L.R.(1896) Mad. 435, a Division Bench of this Court held that the Court had power to hear and decide, objections to the division of the estate made by the Collector under Section 265 of the Code of 1882, to which Section 54 of the present Code corresponds, and in arriving at this decision the learned Judges relied on the decision of the Bombay High Court in Mahadaji Karandikar v. Hari D. Chikne I.L.R.(1883) 7 Bom. 332, which was concerned with Section 320 of the Code of 1882, to which Section 68 of the present Code corresponds. There are several decisions of the Bombay High Court relating directly either to Section 265 of the old Code or Section 54 of the new Code. We shall refer to them in detail presently, but in passing we may say that in some of the cases the Bombay High Court has expressed the view that the Court has no power to interfere and in others that it has a limited power. Admittedly there is no provision in the Code of Civil Procedure giving the right to a party aggrieved by the partition effected by the Collector under Section 54 to appeal to the Civil Court which passed the decree or to apply for revision of the Collector's order. When we read Section 54 in the light of Order 20, Rule 18 and Order 26, rules 13 and 14, it is in our judgment quite clear that the legislature did not intend the Court to have power to interfere with a partition made by the Gollector under Section 54.
3. Order 20, Rule 18 was inserted in the Code for the first time in 1908, and it states what the decree shall contain when it relates to an estate assessed to the payment of revenue to the Government and what the Court may do when the decree relates to other immovable property. Sub-rule (1) reproduces the provisions of Section 54. Sub-rule (2) says that in so far as the decree relates to other immoveable property the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required. It should be borne in mind that where the decree relates to an estate assessed to the payment of revenue to the Government there is no preliminary decree and the Court is not required to give directions. In the case of other immoveable property, the Court may, however, pass a preliminary decree and in it give directions with regard to the partition.
4. Order 26, Rule 13 says that where a preliminary decree for partition has been passed, the Court may, in a 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 the decree. Sub-rule (1) of Rule 14 states that the Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot the shares to the parties, and may, if authorised by the order, award sums to be paid for the purpose of equalising the value of the shares. Sub-rule (2) directs the Commissioner to prepare and submit a report to the Court which, after hearing the objections to the report which the parties may offer, shall confirm, vary or set it aside. Where the Court confirms or varies the report it shall pass a decree in accordance with its decision, but where it sets the report aside it shall issue a new commission or make such other order as it shall think fit. The Court retains complete control over the partition proceedings when it is a case of dividing immoveable property which is not an estate assessed to land-revenue, but where the partition is of an estate assessed to such revenue, the Court has no control over the Collector. The decree is transmitted to him to act in accordance with the rights of the parties declared therein and in accordance with the law for the time being in force relating to the partition or the separate possession of shares of such estate.
5. We will now refer to the decisions of the Bombay High Court which have been quoted to us in the course of the argument. The first of these is Dev Gopal Savant v. Vasudev Vithal Savant I.L.R.(1887)Bom. 371 which was decided by a Division Bench in 1887. It was there said that the Collector acted ministerially in executing the decree, but that so long as he acted within the bounds prescribed the Civil Court had no right to replace his discretion by its own. Although the Court had control of its own decree it had no right to interfere where there had been an objectionable partition by the Collector. In Shrinivas Hanmant v. Gurunath Shrinivas I.L.R.(1890) Bom. 527, another Bench said that the power given to the Collector under Section 265 of the Code of 1882 was not in any way subject to the superintendence of the Civil Court or to revision by a Civil Court. The Collector could not refuse to carry out the decree or order of the Court, but when he had made a partition under the section the Court had no power to examine his work or to direct him to make a fresh partition. The same view was expressed in Bhiman-gauda v. Hanmant Rangappa I.L.R.(1918) Bom. 689.
6. There are two decisions of the Bombay High Court which run to some extent counter to these decisions. In Purushottam Bhaskar v. Balakrishna Pandurang I.L.R.(1903) Bom. 338, the opinion was expressed that the Court would have power to set aside wholly or partially a partition made by the Collector and to ask him to make a fresh partition where the action taken by him was ultra vires, in other words, did not conform to the directions contained in the decree. In Ramachandra Dinkar v. Krishnaji Sakharam I.L.R.(1915)40 Bom. 118, the Collector was regarded as an agent of the Civil Court and therefore the Civil Court had power to remedy a mistake made by its agent in carrying out its directions. The learned Judges regarded the case as resembling that of legatee over-paid by an executor under an order of the Court and observed that the legatee could be compelled to make a refund to allow of equal distribution of the estate.
7. We consider that the decision of this Court in Chinna Seetayya v. Krishnavenamma I.L.R.(1896)Mad. 435 is contrary to law. We do not share the opinion expressed by the Bombay High Court in Purushotham Bhaskar v. Balakrishna Pandurang I.L.R.(1903)28 Bom. 338 that the Court has power to direct the Collector to make a fresh partition and we do not regard him as an agent of the Court when acting under Section 54. He has a statutory duty to perform and in performing it he is not under the control of the Court. He is not even required to report to the Court what He has done. When he has made the partition no order of the Court is necessary. Once the Court has sent the decree to the Collector for action under Section 54, the matter passes entirely out of its hands.
8. This does not, however, mean that a person aggrieved by the partition effected by the Collector is without a remedy. The Collector is subject to the control of the Board of Revenue. Section 5 of the Madras Board of Revenue Regulation, 1803, (Madras Regulation I of 1803) declares that the Board of Revenue has authority to superintend and control all persons employed in the executive administration of the public revenue. Section 5 of the Madras Collectors Regulation, 1803, (Madras Regulati6n II of 1803) says that Collectors shall be under the immediate control of the Board of Revenue and shall obey all orders communicated to them by the authority of that Board. Therefore, a person aggrieved by an order of the Collector under Section 54 of the Code of Civil Procedure has the right of asking the Board to revise the Collector's order. In the recent case of Ryots of Gorabandho v. Zamindar of Parlakimidi (1943) 2 M.L.J. 254 : L.R. 70 IndAp 129 : I.L.R.(1944) Mad. 457 the Privy Council recognise a right of appeal to His Majesty in Council from an order of the Board of Revenue when leave is given.
9. The answer which we give to the question referred is that the Court which passes a decree has no power to hear objections to the partition made by the Collector or his subordinate or to modify the partition.
10. Costs of this reference will be made costs in the appeal.