Gujarat High Court
Lhrs Of Decd. Aher Babu Bhagvan vs Arunkumar Jagdishchandra Joshi on 13 June, 2025
NEUTRAL CITATION
C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7239 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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LHRS OF DECD. AHER BABU BHAGVAN & ORS.
Versus
ARUNKUMAR JAGDISHCHANDRA JOSHI
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Appearance:
MR. ZALAK B PIPALIA(6161) for the Petitioner(s) No.
1,1.1,1.10,1.10.1,1.10.2,1.10.3,1.10.4,1.10.5,1.10.6,1.10.7,1.2,1.3,1.4,1.5,1.6,
1.7,1.8,1.9,2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 13/06/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr.Zalak B. Pipalia for the
petitioners. Though served, none appeared for respondent.
2. The present application is filed under Article 227 of the
Constitution of India, seeking the following relief:-
(A) YOUR LORDSHIPS may be pleased to admit and allow this
petition;
(B) YOUR LORDSHIPS may be pleased to issue a Writ of
Certiorari or Writ in Nature of Certiorari or any other appropriate
Writ, Order or Direction, quashing and setting aside the impugned
order dated 29.04.2025 at Annexure-A passed by the Ld. Principal
Senior Civil Judge, Veraval and thereby allow the objections atPage 1 of 34
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Exh.10 filed by the petitioners in the interest of justice;
(C) Pending admission, final hearing and disposal of the petition,
YOUR LORDSHIPS may be pleased to stay further proceedings of
the Special Civil Execution No.2 of 2022 in the interest of justice;
(D) YOUR LORDSHIPS may be pleased to pass such other order
as may be deemed just and proper in the circumstances of the
case.
3. The Short Facts of the Case:-
3.1. One Bhagvan Raja was having various parcels of land
in Village Amrapur, Taluka Viraval, District Gir Somnath. The
plaintiff of the suit, i.e., Aher Ram @ Sidi Bhagvan, was the
son of Bhagvan Raja from his first wife, and original
Defendant Nos. 2 and 3, namely, Babubhai Bhagvanbhai and
Mensibhai Bhagvanbhai respectively, are the sons of the second
wife of the said Bhagvanbhai Raja.
3.2. It appears that during the lifetime of the said
Bhagvanbhai, his son from his first wife, namely, Aher Ram
@Sidi Bhagvan, instituted the suit for partition, being Special
Civil Suit No.41 of 1989, claiming his share from the
undivided property belonging to his father, Bhagvanbhai Raja.
3.3. The said suit was heard and decided by the Trial
Court, and at the first instance, a preliminary decree in favour
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of plaintiff was passed on 12.09.1990. The said preliminary
decree was subjected to First Appeal No. 2390 of 1993, filed at
the instance of the defendants before this Court.
3.4. It appears that during the pendency of the aforesaid
first appeal, the original plaintiff, namely, Aher Ram @Sidi
Bhagvan, died, and by virtue of his Will dated 07.11.1992
executed in favour of his legal representatives, namely, Aher
Dana Pitha, Aher Punja Pitha, Aher Naran Pitha and Aher
Parbat, who happen to be his maternal cousins, as well as one
Mr. Joshi Arunkumar Jagdishchandra, joined in the aforesaid
first appeal on 21.04.1995, though objected by appellants-
defendants (petitioners).
3.5. After hearing the parties, the Division Bench of this
Court, vide its judgment and order dated 20th January, 2001,
dismissed the aforesaid appeal. Consequently, the preliminary
decree passed by the Trial Court was confirmed.
3.6. After completion of the process, finally, the Trial Court
passed the final decree vide its judgment and order dated 13 th
February 2020, wherein all legal contentions so raised by the
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petitioners herein, objecting to the grant of any relief in favor
of the newly added party, i.e., the legal representatives of the
deceased plaintiff, were turned down. The petitioners have not
questioned such final judgment and decree dated 13 th February,
2020 passed by the Trial Court; thereby, it has become final.
3.7. It is apposite to record that as per the preliminary
decree passed in the year, 1990, so far as the partition of
agricultural lands are concerned and such portion of
implementation / division of agricultural lands is concerned,
the decree was already sent to the Revenue Authority, i.e., the
Collector for its partition in metes and bound.
3.8. So far as another facet of the final decree is
concerned, i.e., mesne profit, at the given point of time, the
Court Commissioner was appointed, and he had submitted a
report in the year 1992, whereby, the mesne profit was
already decided, which was never questioned by the
petitioners-defendants. So, the plaintiff is entitled to receive
Rs.2,74,810.25/- annually as a mesne profit from the
defendants till they receive possession of the suit lands as per
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decree.
3.9. It further appears that out of the five legal
representatives of the original plaintiff, one representative,
namely, Mr. Joshi Arunkumar Jagdishchandra, instituted
Special Execution Application No.2 of 2022, claiming such
mesne profit from the defendants. The petitioners herein
appear to have submitted their detailed objection at Exhibit 10.
3.10. After hearing the parties concerned, the Executing
Court, vide its order dated 29th April, 2025, rejected the
objections of the petitioners herein.
4. Being aggrieved and dissatisfied with the impugned order
passed by the Executing Court, the present writ application is
filed at the instance of the petitioners-judgment debtors.
5. SUBMISSION OF THE PETITIONERS-JUDGEMENT
DEBTORS-DEFENDANTS
5.1. Learned Advocate Mr. Pipalia would submit that the
execution petition at the instance of the respondent, who
happens to be one of the legal representatives of the deceased
plaintiff, is not maintainable inasmuch as the decree is not
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executable in accordance with law. So, the Executing Court has
committed a serious error of law by not accepting the
objections so raised by the petitioners vide Exhibit 10 in the
execution proceedings.
5.2. Learned Advocate Mr. Pipalia would further submit
that the respondent is not claiming any possession of the
agricultural suit lands, which are agricultural lands, knowing
fully well that he is not an agriculturist and not entitled to get
an agricultural land either by way of Will or through a decree;
then, the respondent cannot get any mesne profit.
5.3. Learned Advocate Mr. Pipalia would submit that when
the principal relief, i.e., getting possession of the agricultural
land, is not executable through execution of the decree, the
consequential relief, i.e., mesne profit, cannot be granted in
favor of the respondent by granting such relief through
execution.
5.4. Learned Advocate Mr. Pipalia would further submit
that as per Section 54 of the Saurashtra Gharkhed Tenancy
Settlement and Agricultural Lands Ordinance, 1949, (herein
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after referred as Gharkhed Ordinance) which is pari materia
with Section 43 read with Section 63 of the Bombay Tenancy
and Agricultural Lands Act, 1948, (herein after referred as
Tenancy Act) which bars a non-agriculturist from receiving an
agricultural land in any form, like execution of a Will and/or
decree in his favor.
5.5. In support of his submission, he would rely upon the
decision of the Full Bench of the Hon’ble Supreme Court of
India in the case of Vinodchandra Sakarlal Kapadia vs. State of
Gujarat and others, reported in (2020) 18 SCC 144.
5.6. Learned Advocate Mr. Pipalia would further submit
that the respondent is unable to show that written permission
was obtained by him from the Collector whereby he can get
possession of the agricultural land, i.e., the suit lands, as per
the decree.
5.7. Learned Advocate Mr. Pipalia would further submit
that merely because the contentions/objections raised by the
petitioners before the Trial Court, which were similar to the
objections raised in the execution, were so turned down by the
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Trial Court while passing the final decree, would not disentitle
the petitioners to raise such objections again while defending
the execution. According to learned Advocate Mr. Pipalia, due
to an error of law and/or not citing the decision of the Hon’ble
Supreme Court of India while passing the final decree, it
would not bar the petitioners from raising said legal
contentions again in execution.
5.8. Lastly, learned Advocate Mr. Pipalia would submit that
the Executing Court is required to consider all objections raised
by the petitioner, having the power to decide such objections
as per Section 47 of the Civil Procedure Code, 1908 (For short
“CPC, 1908″), and when it was pointed out to the Executing
Court that the decree in question is not executable in light of
the aforesaid provisions of law as well as the law laid down
by the Supreme Court of India in the case of Kapadia (supra),
the Executing Court could not have rejected the petitioners’
objections.
5.9. In support of his submissions, he is also relying upon
the following decisions:-
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(i) Pradeep Mehra Vs. Harijivan J. Jethwa (since
deceased trhough Lrs.) and others, reported in (2023)
(14) SCALE 887; 2023 (0) AIJEL-SC 72721;
(ii) Sunder Dass Vs. Ram Prakash reported in (1977)
1 SCC 662; 1977 (0) AIJEL-SC 30841.
6. No other and further submissions are being made.
7. Point for Determination
(i) Whether, in the facts and circumstances of the
case, any illegality, irregularity, and/or any gross
error of law was committed by the Executing Court
while passing the impugned order, whereby it
rejected the objections filed by the petitioners below
Exhibit 10 in Special Execution Application No.2 of
2022, or not?
(ii) Whether, in the facts and circumstances of the
case, final decree in question is not executable one
as prayed by petitioners?
8. ANALYSIS
9. At the outset, it is required to be considered that the
present writ application is filed under Article 227 of the
Constitution of India, assailing the order impugned in the writ
application passed by the Executing Court, whereby it rejected
the objections raised by the petitioner. By now, it is a well-
settled legal position of law that has been clarified by the
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Hon’ble Supreme Court in an umpteen number of its decisions,
whereby the scope and ambit of interference by this Court
while exercising its power under Article 227 of the Constitution
of India is fairly defined. So , I would like to remind myself
such scope and power available to this Court while exercising
its power under Article 227 of the Constitution of India which
is succinctly discussed in following two decisions of
Honourable Supreme Court of India.
10. First one in a case of Sameer Suresh Gupta TR PA Holder
vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374, the
relevant observation of the aforesaid judgment reads as under:-
“[6] In our view, the impugned order is liable to be set aside because
while deciding the writ petition filed by the respondent the learned
Single Judge ignored the limitations of the High Court’s jurisdiction
under Article 227 of the Constitution. The parameters for exercise of
power by the High Court under that Article were considered by the
two Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai
and Ors., 2003 6 SCC 675. After considering various facets of the
issue, the two Judge Bench culled out the following principles:
(1) Amendment by Act No. 46 of 1999 with effect from 01-07-
2002 in Section 115 of Code of Civil Procedure cannot and
does not affect in any manner the jurisdiction of the High
Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the Courts subordinate to
the High Court, against which remedy of revision has been
excluded by the Code of Civil Procedure Amendment Act No.
46 of 1999 are nevertheless open to challenge in, and
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continue to be subject to, certiorari and supervisory
jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued
for correcting gross errors of jurisdiction, i.e. when a
subordinate Court is found to have acted (i) without
jurisdiction – by assuming jurisdiction where there exists none,
or (ii) in excess of its jurisdiction – by overstepping or crossing
the limits of jurisdiction, or (iii) acting in flagrant disregard of
law or the rules of procedure or acting in violation of principles
of natural justice where there is no procedure specified, and
thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate
Courts within the bounds of their jurisdiction. When the
subordinate Court has assumed a jurisdiction which it
does not have or has failed to exercise a jurisdiction
which it does have or the jurisdiction though available is
being exercised by the Court in a manner not permitted
by law and failure of justice or grave injustice has
occasioned thereby, the High Court may step in to
exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of
fact or of law unless the following requirements are
satisfied: (i) the error is manifest and apparent on the
face of the proceedings such as when it is based on clear
ignorance or utter disregard of the provisions of law, and
(ii) a grave injustice or gross failure of justice has
occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which
can be perceived or demonstrated without involving into any
lengthy or complicated argument or a long-drawn process of
reasoning. Where two inferences are reasonably possible and
the subordinate Court has chosen to take one view, the error
cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory
jurisdiction are to be exercised sparingly and only in
appropriate cases where the judicial conscience of the High
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Court dictates it to act lest a gross failure of justice or grave
injustice should occasion. Care, caution and circumspection
need to be exercised, when any of the abovesaid two
jurisdictions is sought to be invoked during the pendency of
any suit or proceedings in a subordinate Court and the error
though calling for correction is yet capable of being corrected
at the conclusion of the proceedings in an appeal or revision
preferred there against and entertaining a petition invoking
certiorari or supervisory jurisdiction of High Court would
obstruct the smooth flow and/or early disposal of the suit or
proceedings. The High Court may feel inclined to intervene
where the error is such, as, if not corrected at that very
moment, may become incapable of correction at a later stage
and refusal to intervene would result in travesty of justice or
where such refusal itself would result in prolonging of the lis. (
(8) The High Court in exercise of certiorari or supervisory
jurisdiction will not covert itself into a Court of Appeal
and indulge in re-appreciation or evaluation of evidence
or correct errors in drawing inferences or correct errors
of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to
issue a writ of certiorari and those calling for exercise of
supervisory jurisdiction are almost similar and the width of
jurisdiction exercised by the High Courts in India unlike
English Courts has almost obliterated the distinction between
the two jurisdictions. While exercising jurisdiction to issue a
writ of certiorari the High Court may annul or set aside the act,
order or proceedings of the subordinate Courts but cannot
substitute its own decision in place thereof. In exercise of
supervisory jurisdiction the High Court may not only give
suitable directions so as to guide the subordinate Court as to
the manner in which it would act or proceed thereafter or
afresh, the High Court may in appropriate cases itself make
an order in supersession or substitution of the order of the
subordinate Court as the Court should have made in the facts
and circumstances of the case.
7. The same question was considered by another Bench in Shalini
Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010)
3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49)
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“(a) A petition under Article 226 of the Constitution is different
from a petition under Article 227. The mode of exercise of
power by the High Court under these two articles is also
different.
(b) In any event, a petition under Article 227 cannot be called
a writ petition. The history of the conferment of writ jurisdiction
on High Courts is substantially different from the history of
conferment of the power of superintendence on the High
Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of
its power of superintendence under Article 227 of the
Constitution, interfere with the orders of tribunals or
Courts inferior to it. Nor can it, in exercise of this power,
act as a Court of appeal over the orders of the Court or
tribunal subordinate to it. In cases where an alternative
statutory mode of redressal has been provided, that
would also operate as a restrain on the exercise of this
power by the High Court.
(d) The parameters of interference by High Courts in exercise
of their power of superintendence have been repeatedly laid
down by this Court. In this regard the High Court must be
guided by the principles laid down by the Constitution Bench
of this Court in Waryam Singh [Waryam Singh v. Amarnath,
AIR 1954 SC 215] and the principles in Waryam Singh
[Waryam Singh v. Amarnath, AIR 1954 SC 215] have been
repeatedly followed by subsequent Constitution Benches and
various other decisions of this Court.
(e) According to the ratio in Waryam Singh [Waryam
Singh v. Amarnath, AIR 1954 SC 215] , followed in
subsequent cases, the High Court in exercise of its
jurisdiction of superintendence can interfere in order only
to keep the tribunals and Courts subordinate to it, ‘within
the bounds of their authority’.
(f) In order to ensure that law is followed by such tribunals and
Courts by exercising jurisdiction which is vested in them and
by not declining to exercise the jurisdiction which is vested in
them.
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(g) Apart from the situations pointed in (e) and (f), High
Court can interfere in exercise of its power of
superintendence when there has been a patent perversity
in the orders of the tribunals and Courts subordinate to it
or where there has been a gross and manifest failure of
justice or the basic principles of natural justice have been
flouted.
(h) In exercise of its power of superintendence High
Court cannot interfere to correct mere errors of law or
fact or just because another view than the one taken by
the tribunals or Courts subordinate to it, is a possible
view. In other words the jurisdiction has to be very
sparingly exercised.
(i) The High Court’s power of superintendence under Article
227 cannot be curtailed by any statute. It has been declared a
part of the basic structure of the Constitution by the
Constitution Bench of this Court in L. Chandra Kumar v. Union
of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and
therefore abridgment by a constitutional amendment is also
very doubtful.
(j) It may be true that a statutory amendment of a rather
cognate provision, like Section 115 of the Civil Procedure
Code by the Civil Procedure Code (Amendment) Act, 1999
does not and cannot cut down the ambit of High Court’s
power under Article 227. At the same time, it must be
remembered that such statutory amendment does not
correspondingly expand the High Court’s jurisdiction of
superintendence under Article 227.
(k) The power is discretionary and has to be exercised on
equitable principle. In an appropriate case, the power can be
exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power
of the High Court under Article 227, it transpires that the main
object of this article is to keep strict administrative and judicial
control by the High Court on the administration of justice
within its territory.
(m) The object of superintendence, both administrative
and judicial, is to maintain efficiency, smooth and orderly
functioning of the entire machinery of justice in such a
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way as it does not bring it into any disrepute. The power
of interference under this article is to be kept to the
minimum to ensure that the wheel of justice does not
come to a halt and the fountain of justice remains pure
and unpolluted in order to maintain public confidence in
the functioning of the tribunals and Courts subordinate to
the High Court.
(n) This reserve and exceptional power of judicial
intervention is not to be exercised just for grant of relief
in individual cases but should be directed for promotion
of public confidence in the administration of justice in the
larger public interest whereas Article 226 is meant for
protection of individual grievance. Therefore, the power
under Article 227 may be unfettered but its exercise is
subject to high degree of judicial discipline pointed out
above.
(o) An improper and a frequent exercise of this power will be
counterproductive and will divest this extraordinary power of
its strength and vitality.”
(Emphasis supplied)
11. The second decision in a case of Garment Craft v.
Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein
the Hon’ble Supreme Court of India has held as under:-
15. Having heard the counsel for the parties, we are clearly of the
view that the impugned order [Prakash Chand Goel v. Garment
Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be
sustained for several reasons, but primarily for deviation from the
limited jurisdiction exercised by the High Court under Article 227 of
the Constitution of India. The High Court exercising supervisory
jurisdiction does not act as a Court of first appeal to reappreciate,
reweigh the evidence or facts upon which the determination under
challenge is based. Supervisory jurisdiction is not to correct
every error of fact or even a legal flaw when the final finding is
justified or can be supported. The High Court is not to
substitute its own decision on facts and conclusion, for that of
the inferior Court or tribunal. [Celina Coelho Pereira v. UlhasPage 15 of 34
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Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69]
The jurisdiction exercised is in the nature of correctional
jurisdiction to set right grave dereliction of duty or flagrant
abuse, violation of fundamental principles of law or justice. The
power under Article 227 is exercised sparingly in appropriate
cases, like when there is no evidence at all to justify, or the finding
is so perverse that no reasonable person can possibly come to such
a conclusion that the Court or tribunal has come to. It is axiomatic
that such discretionary relief must be exercised to ensure there is no
miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court
in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass
Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102,
para 6)“6. The scope and ambit of exercise of power and jurisdiction
by a High Court under Article 227 of the Constitution of India is
examined and explained in a number of decisions of this
Court. The exercise of power under this article involves a duty
on the High Court to keep inferior Courts and tribunals within
the bounds of their authority and to see that they do the duty
expected or required of them in a legal manner. The High
Court is not vested with any unlimited prerogative to correct all
kinds of hardship or wrong decisions made within the limits of
the jurisdiction of the subordinate Courts or tribunals. Exercise
of this power and interfering with the orders of the Courts or
tribunals is restricted to cases of serious dereliction of duty
and flagrant violation of fundamental principles of law or
justice, where if the High Court does not interfere, a grave
injustice remains uncorrected. It is also well settled that the
High Court while acting under this Article cannot exercise its
power as an appellate Court or substitute its own judgment in
place of that of the subordinate Court to correct an error,
which is not apparent on the face of the record. The High
Court can set aside or ignore the findings of facts of an inferior
Court or tribunal, if there is no evidence at all to justify or the
finding is so perverse, that no reasonable person can possibly
come to such a conclusion, which the Court or tribunal has
come to.”
(Emphasis supplied)
12. Now, keeping in mind the aforesaid limitation to interfere
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with the impugned order, the submissions made by learned
Advocate Mr. Pipalia are answered and dealt with as follows:
12.1. It remains undisputed that during the lifetime of the
original plaintiff, a preliminary decree was passed on 12 th
September, 1990, which was challenged by the petitioners
herein, but they failed in their attempt as the Division Bench
of this Court, vide its judgment and decree dated 20 th January
2001, confirmed the said preliminary decree.
12.2. As per the preliminary decree, which is made
available, having been annexed with the present application,
indicates that the original plaintiff was entitled to have a ¼
share from the suit properties, i.e., Agricultural lands. It has
been further observed in the preliminary decree that as the
suit properties are agricultural lands, it is necessary to direct
the Collector, Junagadh, to partition the suit properties, i.e.,
agricultural land, and accordingly, the Revenue Authority, i.e.,
the Collector, was directed to effect partition in metes and
bound. This was done way back in year 1990 and ought to
have been observed after dismissal of aforesaid first appeal in
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year 2001.
12.3. At this stage, it would be appropriate to refer Section
54 read with Order 20, Rule 18 of the CPC, 1908, which reads
as under:-
SECTION 54 OF CPC, 1908
54. Partition of estate or separation of share.–Where the
decree is for the partition of an undivided estate assessed to the
payment of revenue to the Government, 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.
ORDER 20 RULE 18 OF CPC, 1908
18. Decree in suit for partition of property or separate
possession of a share therein.–Where the Court passes a
decree for the partition of property or for the separate
possession of a share therein, then,–
(1) if and in so far as the decree relates to an estate assessed
to the payment of revenue to the Government, the decree shall
declare the rights of the several parties interested in the
property, but shall direct such partition or separation to be
made by the Collector, or any gazetted subordinate of the
Collector deputed by him in this behalf, in accordance with
such declaration and with the provisions of section 54;
(2) if and in so far as such decree relates to any other
immovable property or to movable 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.
12.4. In view of the aforesaid provisions of law, once a
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preliminary decree is passed by a Trial Court in relation to
agricultural land, the actual partition of the agricultural land
by metes and bounds and for separate possession of the share
in favor of the decree-holder would be undertaken by a
Revenue Officer, i.e., the Collector or his appointee, as the
case may be, in accordance with law for time being in force.
12.5. The Co-ordinate bench of this Court has also taken
view in case of Dinbandhu Dinanath Prajapati Versus
Devenbhai Mafatlal Patel reported in 2024 (4) GLR 3074
having so held that the Court having become functus officio
cannot entertain any further application against the preliminary
decree and set the clock back prior to the preliminary decree.
The relevant paragraphs are as under:-
“20. Another issue arises is that can a civil court entertain any
such application after sending the preliminary decree for
partition of the agricultural land assessed for Land Revenue
under Section 54 read with O.20 R.18 of the CPC to the
Collector. Section 54 of the CPC reads thus:
54. Partition of estate or separation of share .-
Where the decree is for the partition of an undivided
estate assessed to the payment of revenue to the
Government, 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
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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.
21. Section 54 is parimateria or a reproduction of section 265 of the
Code of Civil Procedure, 1882 with a verbal alterations. Where a
decree has been passed for partition or for of a share of an estate
of the description mentioned in this section, the proper authority to
effect partition or to deliver the possession of the share is the
Collector. The Court passing preliminary decree in a subject
matter which is assessed for payment of land revenue become
functus officio. Section 54 does not talk about a final decree.
All that is required of a civil court in a case for partition or to deliver
possession case for partition of an undivided estate assessed to
payment of land revenue of government or for the separate
possession of a share in such an estate is to pass a preliminary
decree and to declare a right of the party and to give direction for
such partition or separation to be made by the collector. Thereafter,
the execution is to be effected by the Collector. The civil court,
after passing such decree for partition, becomes functus
officio and has no jurisdiction to act in any manner thereafter
so as to pass a final decree or deliver possession to a party in
passing such accordance with preliminary decree but the
partition intended to be left to the Collector has some impact
upon the revenue and the revenue records.
22. The court after drawing the preliminary decree becomes
functus officio in relation to the decree for partition passed by
it and all further proceedings for execution of such decree
have to be carried out by the concerned revenue officer. The
court is prevented fromacting as an executing court for the
purpose of execution of decree for partition. Not only, once the
preliminary decree is drawn, the rights of the parties are
settled, it cannot be unsettled by the same court, allowing the
recall application on record. Once becomes functus officio at
the most, the civil court can direct the Collector to execute the
decree and to make partition if the revenue officer are not
proceeding further. The civil court can also act if the petitioner do
not want to reopen the decree; but they are expecting the decree as
it is and they only want to equity to be settled in their favour.
25. What appears in the present case is that respondent who is
non-party to the suit or not a party to the suit, preferred the
recall application to the civil court which has passed the
preliminary decree with a prayer to recall the preliminary
decree. As stated herein above, the civil court after passing the
preliminary decree in RCS No.210 of 2012 and sent it for
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partition to the Collector in view of Section 54 read with O.20
R.18 of the CPC becomes functus officio, to entertain the
application. The trial court has committed serious error not
only in entertaining the recall application; but passing status
quo order staying its own preliminary decree from the
execution which is serious jurisdictional error committed by
the court below. The court having become functus officio
cannot entertain any further application against the preliminary
decree and set the clock back prior to the preliminary decree.
Hence, the petition deserves merits.”
(emphasis supplied)
13. It would also be apt to refer recent past decision
of Honourable Supreme Court in a case of Abdul Rejak
Laskar Versus Mafizur Rahman and Others reported in
2024 SCC OnLine SC 3845 wherein held thus:-
“47. In regard to estates assessed to payment of revenue to
the government (agricultural land), the court is required to
pass only one decree declaring the rights of several parties
interested in the suit property with a direction to the Collector
(or his subordinate) to effect actual partition or separation in
accordance with the declaration made by the court in regard
to the shares of various parties and deliver the respective
portions to them, in accordance with Section 54 of CPC. If the
Collector takes action in the decree appropriately, the matter will
not come back to the court and the court will not have to interfere in
the partition, except attending any complaint of an affected third
party. While making the partition the Collector is bound by
declaration of the rights of the parties in the preliminary
decree. But the Court has no power to fetter the discretion of
the Collector conferred under the law. However, in regard to any
issue on which the Collector is not competent to decide, the civil
court will have the power to dispose of. If the Collector disregards
the terms of the decree, the Court is entitled to refer the case back
to the Collector to re-partition the property. The Collector must
actually divide the estate in the manner he thinks best keeping in
mind the nature of the land as revenue paying entity and the
stipulations of the decree. The object of this provision is two-fold:
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a. First, the revenue authorities are more conversant and
better equipped to deal with such matters than a civil
court, and;
b. Secondly, the interest of the government in regard to
the revenue paying estate would be better safeguarded by
the Collector than by the civil court.
51. In the aforesaid context, we looked into one very lucid decision
of the High Court of Karnataka in the case of Ramagouda
Rudregouda Patil v. Lagmavva,1984 SCCOnline(Kar) 192
explaining the true purport and scope of Section 54 of the CPC read
with Order XX Rule 18 of the CPC. We may quote the relevant
observations:
“7. It is now a well settled principle of law that in the case
of the execution of the decrees pertaining to partition and
separate possession of agricultural lands assessed to
Revenue, the Civil Court only declares the shares of the
parties and the authority concerned has to effect partition
or division by metes and bounds, as envisaged by
Section 54 of C.P.C. Collector is the authority concerned
to effect partition. Once the papers were sent to the
collector, the Civil Court has no control over the
proceedings taken by the Collector. The Civil Court
cannot direct the Collector to effect partition in a
particular manner after the papers were sent to him.
Therefore, Section 54 C.P.C. makes it absolutely clear that
the execution is not at all contemplated in the case of
decrees for partition and division of agricultural lands.
What the Civil Court has to do is to transmit the papers to
the Collector for actual partition and possession.
Therefore, all Execution Petitions are to be filed in the
Civil Courts requesting the Court to transmit the papers to
the Collector for partition and possession of agricultural
lands. They are not, in any sense of the term, execution
petitions. They are only in the form of a request to the
Court to do its duty as enjoined on it by Section 54 C.P.C.
Therefore, the lower Appellate Court rightly held that the
execution petitions filed in such cases are only requests or
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reminders to the Court to send the papers to the Collector to
effect the partition.
xxx xxx xxx
10. Under Section 54 and Order 20 Rule 18 C.P.C. the only
duty of the Collector, now called as the Deputy Commissioner,
is to effect partition or division by metes and bounds in
accordance with law if any for the time being in force, relating
to partition or separate possession of shares of such estate.
The word ‘partition’ used in Section 54 or Order 20 Rule 18, in
my opinion, means that the partition is not confined to mere
division of the lands concerned into the requisite parts, but
also includes the delivery of shares to the respective allottees.
To elaborate further, the word ‘partition’ means actual division
or partition by metes and bounds and handing over
possession of the shares to the parties.
xxx xxx xxx
15. Sri Ujjannavar then urged that a decree passed in a
partition suit was not a preliminary decree and it amounts to
saying that the decree has become final. It is no doubt true
that it has been held by this Court in the decision in
Ganapatrao Raojirao Desai v. Balvant Krishnaji Desai,1965 2
MysLJ 768 that:
“A decree passed under R. 18(1) of Or. XX directing
partition by the Collector cannot be said to be a
preliminary decree. So far as the Civil Courts are
concerned it is final for all purposes, though the partition
of the property may remain to be effected by the
Collector. Sub-rule (1) of Rule 18 does not contemplate
any application to be filed by the parties for sending the
papers to the Collector.”
The purport of the said expression used by this
Court is that though it cannot be said to be a
preliminary decree, it became final for all purposes
so far as the Civil Courts are concerned. Once a
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decree declaring the shares of the parties is passed
by the Civil Court, it has nothing more to do. It
means that the case has come to an end in the Civil
Court and it does not amount a final decree.
Therefore, it cannot be considered to be a final
decree as understood in the Civil Procedure Code.
Therefore, the argument of Learned Counsel Sri
Ujjannavar that in the case of a final decree the
limitation would begin to run, holds no substance
and it is rejected.”
(Emphasis supplied)
13.1. Thus, in view of the aforesaid clear pronouncement,
once a preliminary decree in relation to an agricultural land is
passed by the Trial Court, it becomes functus officio, more so
when it has been final having confirmed in first appeal being
dismissed by division bench of this Court.
13.2. This Court, during the course of argument, put a
query to learned Advocate Mr. Pipalia as to what was the
position of law that stood when the preliminary decree was
passed and confirmed by the Division Bench of this Court
while dismissing the appeal of the petitioners on 20 th January
2001, so far as receiving an agricultural land by legal
representatives of a deceased, who are not agriculturists,
having received the benefit under the Will of a deceased
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agriculturist.
13.3. Learned Advocate Mr. Pipalia fairly conceded and
submitted that when the Division Bench of this Court
confirmed the preliminary decree in the year 2001, as per a
judgment of this Court reported in Ghanshyambhai Nabheram
Vs. State Of Gujarat, reported in 1999 (2) GLR 1061, a non-
agriculturist, who happens to be a legal representative by
virtue of the Will of a deceased agriculturist, could receive an
agricultural land.
13.4. It is not in dispute that the respondent herein was
joined in the appeal proceedings and the law stood, as on the
date of the passing of the judgment whereby the preliminary
decree was confirmed by the Division Bench of this Court, that
benefit derived from the decree was made available to the
legal representatives of the deceased plaintiff, including the
respondent herein.
13.5. Having so observed the said facts and the position of
law that stood as on the date of confirmation of the
preliminary decree, the legal representatives of the deceased-
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plaintiff were entitled to receive the benefits flowing from the
preliminary decree, i.e., a ¼ share in the suit lands, i.e.,
agricultural land. Furthermore, close reading of S. 54 of CPC
would also obligate revenue authority to obey such preliminary
decree which was passed in accordance with law for time
being in force.
14. Thus, the submissions made by learned Counsel Mr.
Pipalia, by placing reliance upon the Full Bench decision of
the Hon’ble Supreme Court in the case of Kapadia (supra), are
turned down, as such said decision came two decades later in
point of time after confirming preliminary decree by the
Division Bench of this Court in year 2001.
15. It is a well-settled legal position of law that when an
issue, once decided between the parties and the decree having
been confirmed in appeal, attains its finality, such issue cannot
be reopened by a party due to any change of a subsequent
judgment of the Hon’ble Apex Court explaining the position of
law.
16. It is settled legal position of law that any subsequent
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pronouncement of law by Hon’ble Supreme Court would not
ipso facto apply between the parties if their disputes have been
already decided by the higher court prior to such
pronouncement of law. It would be apt to refer and rely upon
a decision of Hono’ble Supreme Court of India in a case of
Rangarao V/S Kamlakant reported in 1995 Supp (1) SCC 271
wherein held thus:
“[2] The date of the decree is 3/1/1985. Thereafter, what had
happened is a notification exempting certain categories of buildings
from the purview of C. P. and Berar Letting of Houses and Rent
Control Order, 1949 issued under clause 30 of the said order came
to be struck down on the ground that it was violative of Article 14 of
the Constitution. This decision was rendered on 9/6/1985. When
the decree was sought to be executed, the tenant albeit the
compromise raised an objection that the decree became
unexecutable since the civil court had lost jurisdiction to pass an
order of eviction in view of the decision. That objection was
overruled by the court of first instance and the court of appeal.
Thereafter, when the matter went up to the High court, this
objection of the judgment-debtor was sustained. Hence, the Civil
Appeal.
[5] On our careful consideration, we find that the appellant is
entitled to succeed. It is undeniable that on the date when the
compromise memo fruitioned into a decree on 3/1/1985, the
civil court had every jurisdiction to pass such a decree. It is
true the notification issued under clause 30 of C. P. and Berar
Letting of Houses and Rent Control Order, 1949 came to be
struck down as violative of Article 14 of the Constitution. This
was on 19-6-1985. The decision rendered thereunder cannot
have any effect of rendering the decree passed on 3/1/1985 a
nullity which decree has become final. No judgment of any
court can have any retrospective operation because that is the
plenary power of Parliament (Legislature as well). The courts
do not have such power. If that be so, the High court had
clearly gone wrong in holding that the decree on the date ofPage 27 of 34
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execution is a nullity. As correctly contended by Mr Sanghi,
learned counsel for the appellant, the jurisdiction will have to be
decided on the date of the decree namely, 3/1/1985. On that date
undoubtedly it had every jurisdiction. Therefore, we hold that the
High court fell into an error in upsetting the concurrent findings of
the courts below. Accordingly, we set aside the judgment of the
High court and allow the Civil. There shall be no order as to costs.”
(emphasis supplied)
17. Furthermore, the present execution is filed by the
respondent seeking only mesne profit and not execution for
any possession of the suit land, i.e., an agricultural land and
or direction to be issued to Collector for affect actual partition,
as by way of the preliminary decree, the partition of the
agricultural land would have to be undertaken by the Revenue
Authority. Now, as per the aforesaid position of law, and once
the Trial Court has become functus officio in that regard, such
objections about a non-executable decree in relation to
agricultural land are not only misconceived but also dilatory
tactics on the part of the judgment-debtors to avoid the
legitimate claim to be received by the judgment-creditor to get
the fruits of the decree. More so, when such decree becomes
final and having raised such objection prior to passing final
decree was also turn down.
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18. The Executing Court, while passing the impugned order,
has considered and as such reproduced the order dated 30 th
January, 2020 passed by the Trial Court passed below Exhibit
181 in Special Civil Suit no.41 of 1989, whereby the objections
which are so raised below Exhibit 10 (impugned one) in the
execution application were already raised albeit, turned down
and rejected by Trial Court while passing final decree. The
Executing Court, in para-3 of the impugned order, has in fact
reproduced the relevant portion of the aforesaid order dated
30th January 2020 passed below Exhibit-181 in the aforesaid
suit.
19. It appears from the bare reading of the portion of said
order dated 30th January, 2020 (although not made available to
this Court but reproduced in impugned order), which would
suggest that the objections, which are so raised below Exhibit
10 in the execution application by the petitioners, were already
raised before the Trial Court prior to the passing of the final
decree, and after the hearing of all the parties, such objections
were turned down, whereby the Trial Court rejected the
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application of the petitioners filed below Exhibit 181 in the
aforesaid suit.
20. Even though having lost in their objections raised during
the pendency of the suit, not questioning the final decree
passed by the Trial Court in appeal, and also having filed
Special Civil Suit No.19 of 2022 whereby the Will of the
deceased-plaintiff is now challenged, for the first time, they
tried to raise such objections again, whereby an attempt was
made by the petitioners to derail the execution further and an
attempt was made to deprive the judgment-creditor from
realizing the fruits of the decree by raising the impugned
objections below Exhibit 10 in the execution.
21. When the Executing Court, taking note of the aforesaid
facts and circumstances of the case and having notice that the
mesne profit was already decided as per the Court
Commissioner’s report of the year 1992, which was never
questioned by the petitioners, the Executing Court felt itself
having bound by the final decree which is required to be
executed so far as the mesne profit is concerned, then turned
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down the objections of the petitioners. In light of aforesaid, I
am of the view that no illegality, irregularity, and/or any gross
error of law was committed by Executing Court while rejecting
objections of petitioners.
22. There is no cavil that the Executing Court under Section
47 of the CPC has power to decide objections, but at the same
time, it is well settled that it cannot travel beyond the decree.
As pointed out hereinbefore, when the preliminary decree was
passed and confirmed, there was no illegality in passing such a
decree, as the position of law that stood as on that day
allowed a non-agriculturist to receive a benefit under Will or
the decree as the case may be whereby an agricultural land
may be received by him, though legal representative of the
decree-holder may be a non-agriculturist.
23. So, in view of aforesaid, submissions made by learned
advocate Mr. Pipaliya are not acceptable but requires outright
rejection whereby, it is held that final decree, so far as
granting mesne profit is concerned, is executable one.
24. In light of the aforesaid facts and circumstances of the
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case and having not found any gross illegality, irregularity,
perversity, and/or any erroneous reasoning on the part of the
Trial Court while passing the impugned order, and applying
the ratio of the decisions of the Hon’ble Supreme Court and so
also of this Court in above referred cases including of Sameer
Suresh Gupta (supra) and Garment Craft (supra) to the facts of
the present case, I am of the view that no interference is
required by this Court while exercising its jurisdiction under
Article 227 of the Constitution of India.
25. As this Court has not found any merits in the
application, but rather feels that the petitioners have tried to
derail the execution by not allowing the judgment-creditor to
realize the fruits of the decree, by not only consuming the
time of the Trial Court before the passing of the decree but
also of the Executing Court by again raising similar objections
and so also of this Court, the present writ application requires
to be dismissed with costs.
CONCLUSION
26. The upshot of the aforesaid observations, discussions, and
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reasons, would lead to only one conclusion that present writ
application, lacking merits, requires to be rejected.
27. The order impugned in present writ application is neither
suffers from any illegality, irregularity nor erroneous nor
perverse and not even found to be passed contrary to any
provisions of law.
28. Further, final decree passed by Trial Court sought to be
executed by way of execution at instance of respondent is
executable one in accordance with law.
29. Consequently, present writ application is hereby
REJECTED with costs of Rs.50,000/-. Notice is discharged.
30. The petitioners herein are hereby directed to deposit costs
of Rs.50,000/- with the District Legal Services Authority,
Veraval, District Gir Somnath, within a period of two weeks
from the date of receipt of the copy of this order.
31. The Executing Court is requested to see the compliance
of the costs to be deposited by the petitioners-opponents-
objectors to the execution petition.
32. At last, Executing Court is also advice to adjudicate and
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dispose of execution at earliest preferably within 3 months
from date of receipt of copy of this order as filed in year
2022. [See – Rahul S. Shah V/s Jinendra Kumar Gandhi (2021)
6 SCC 418 and Periyammal (dead) through LRS V/s Rajamni
reported in 2025 SCC Online SC 507]
(MAULIK J.SHELAT,J)
MOHD MONIS
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