APPALAL MOHAMMED DESAI Vs. ZIYAUDDIN ISAQ DESAI

JUDGEMENT

(1.) THIS regular second appeal preferred by the plaintiff arises out of Execution Petition No. 75 of 1982 on the file of Additional Munsiff and JMFC, Chikodi. This execution petition was to execute the partition decree granted in O. S. No. 174 of 1953 which was confirmed in R. A. No. 416 of 1954. Therefore, the decree of O. S. No. 174 of 1953 is yet to be executed and the same is pending for 45 years as on date. It is quite unfortunate that such position is rendered by the fight between the parties and the delay has occurred in Courts.

(2.) THE suit for partition by one Appalal Mohammed Desai, against his brothers ended in a decree. The sons and daughters of deceased Isaqwallad Ahamad Desai have presented the execution petition for partition to direct the papers to be sent to Deputy Commissioner for effecting the partition under Section 54 of the CPC. It was claimed that the decree-holder was entitled for 1/4 share and if that be the legal position and if the partition in the suit properties hit by the provisions of Prevention of Fragmentation Act, the decree-holders be paid compensation thereof.

(3.) THE judgment-debtors 1a to ID alone filed their objections contending that the decree-holders 1a and IB are not the son and daughter of the deceased Isaq, the decree is not executable until final decree is passed. The decree is dated. . . 1953 and it should have been executed within 12 years; therefore the decree dated 1953 is barred by limitation and the execution petition filed beyond 12 years. The judgment-debtors have perfected the title by adverse possession as well.