MOTILAL MANRUPJI SOLANKI Vs. GANESHMAL RAMCHANDRA SOLANKI

JUDGEMENT

(1.) PRESENT writ petition under Article 227 of the Constitution of India, is filed challenging the order dated 25th April, 1991 passed by the Jt. Civil Judge Sr. Divn. Thane in Spl. Darkhast No. 35 of 1988 (Exh. 1). By the said order, the Civil Judge. Sr. Division, Thane has dismissed the petitioner's application for sending papers to the Collector for effecting the partition, on the ground of limitation.

(2.) THE facts relevant for the disposal of the present writ petition are as under: - In a family dispute, sole arbitrator was appointed. On 16th May, 1958, the Sole Arbitrator declared an award. On 4th August, 1958 the decree was drawn in terms of the said award. On 18th November, 1958, the said decree was presented for registration and accordingly came to be registered. Para (d) of the decree relates to four pieces of agricultural lands situated at Mulund. The decree mentions that if the partition is permissible, the lands referred to in the said para should be partitioned between the parties by half -half proportion. From the records it is clear that the said lands are agricultural lands assessed to land revenue and for effecting partition, as per Section 54 of the Code of Civil Procedure, 1908, the papers are required to be sent to the Revenue Authorities. On 19th April, 1988, an application in the form of Darkhast was filed by the petitioners herein before the Civil Judge, S.D. Thane, with the prayer that the papers be sent to the Collector of Bombay Suburban District for effecting partition of the agricultural lands mentioned in para (d) of the said application. From the perusal of the said application, it is clear that the said application is wrongly termed as Darkhast Application. The said application ought to have been termed as simplicitor application for sending the papers to the revenue authorities under Section 54 of the Code of Civil Procedure, 1908. The respondents herein objected to the prayer made by the petitioners on the ground of limitation and jurisdiction of the Civil Court to try the execution petition. As far as objection to the jurisdiction is concerned, the trial Judge has negatived the said contention and answered the same in favour of the petitioners herein. However, on the point of limitation, the trial court has come to the conclusion that in view of Article 136 of the Limitation Act, 1963, (hereinafter referred to as 'Act' for short), Darkhast application is time barred.

(3.) I find considerable force in the submission of Mr. Shah. The full bench of this Court in the case cited supra has observed as under: - In 41 Bom. L.R. 921 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. The full bench has further observed as under : - 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 20 Rule 18(1), 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. The Court further considered the question that if the decree is regarded as the final decree, still then such an application asking the Court for issuance of the precept to the Collector is not an application for execution of the decree and only a request to the Court to do ministerial act of sending the papers to the concerned Collector, and this Court thus held (at pp. 341 -342 of AIR): - 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 a very nature, incapable of execution. So, too, is a decree under Order20 Rule 18(1) Civil Procedure Code. 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 21 Rule 10 Civil Procedure Code 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 Col. 1 of Article 182 of Sch. 1, 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. 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. Gandadhar 40 Bom. L.R. 507 : AIR 1938 Bom. 354 it is only in the case of preliminary decrees in mortgage suits that an application for making it final is expressly required by Order 34. He says that provisions in the Civil Procedure Code 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 20, Rule 18(1), to the Collector and therefore, Article 181 is not applicable to such an application. 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 Limitation Act....