RAMABAI GOVIND Vs. ANANT DAJI

JUDGEMENT

(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 Civil P. C. 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/s. Fernandez . 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/s. 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 . But Mr. Desai for the appellant challenges the correctness of those rulings on the ground that certain provisions of the Civil P. C. 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/s. 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 Civil P. C. 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/s. Shankarbhai (1886) I.L.R. 11 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 Civil P. C., 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 Art. 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/s. Balu Laxman (1912) I.L.R. 37 Bom. 307, 312 : S.C. 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.