The present decree for partition of agricultural lands paying revenue to the Government, though was passed on 9-1-1947 and the said decree was affirmed in appeal on 2-1-1948 and it was directed in the said decree that the precept will be issued to the Collector on an application by the plaintiff and such application having been made on 15-2-1992 i.e. almost after 45 years of the passing of the decree, such an application for issuance of the precept to the Collector for partition of the lands, is neither barred by any period of limitation nor prohibited under any law. There being no law prohibiting the partition of the property assessed to payment of land revenue after a fixed period of limitation, the applicant could not have been deprived of his rights in having the partition decree dated 9-1-1947 effected through the Collector. Merely because the application for issuance of the precept has been made almost after 45 years of the passing of the decree for partition of the agricultural lands assessed to the payment of land revenue, such an application could not have been dismissed by Court below by applying the principle that law always helps those persons' who are vigilant about their rights and not those who have slept over their rights. No such principle of equity can be made applicable when law of Limitation does not bar making of such an application beyond any period. The Law of Limitation has to be read, as provided in the statute, and it does not spring from the common law of the country or principle of equity. As already observed above, the application filed by the applicant for issuance of precept to the Collector for effecting partition of the decree passed on 9-1-1947 relating to agricultural lands assessed to land revenue, being not an application for execution of a decree, was neither covered under Section 48 of the C.P.C. as was existing prior to 1-1-1964 nor Art. 182 of the Limitation Act, 1908 or any other article of the Limitation Act, 1908, or any of the provisions contained in the Limitation Act, 1963 and, therefore, the Court below committed serious error of law and jurisdiction in dismissing the application filed by the applicant on 15-2-1992 for issuance of the precept to the concerned Collector for effecting partition of the agricultural lands assessed to land revenue, mentioned in Schedule 'A' of the said decree.
IN THE HIGH COURT OF BOMBAY AT NAGPUR
Civil Revn. Appln. No. 1214 of 1992
Decided On: 17.04.1995
Ramrathibai Vs. Surajpal and Ors.
Hon'ble Judges/Coram:
R.M. Lodha, J.
Citations: AIR 1995 Bom 445, 1995 (4) BomCR 665, 1996 (2) MhLj 40
1. The order dated 17-10-1992 passed by the Civil Judge, Junior Division, Babhulgaon, is the subject-matter of challenge in this revision application filed under Section 115 of the Code of Civil Procedure, 1908 (for short 'the C.P.C.').
2. The important question involved in the present revision application is whether an application filed by the applicant under Section 54 of the C.P.C. on 15-2-1992 for sending the precept to the Collector having jurisdiction over the subject-matter for partition of agricultural land i.e. estate assessed to land revenue to Government, pursuant to the decree passed on 9-1-1947, was an application for execution of the decree, and therefore, barred by limitation under Article 182 of the Limitation Act, 1908 or under any Article of Limitation Act, 1963 or under Section 48 of the C.P.C., as was existing prior to 1-1-1964.
3. The facts are undisputed and the said facts are that the present applicant filed a suit for partition and separate possession against Bhulai Ramdin Pardeshi -- the predecessor-in-title of non-applicant Nos. 1 to 15, relating to agricultural lands situated at mouza Muradabad and Fatepur, tahsil and district Yavatmal. The said suit was registered as Regular Civil Suit No. 30A of 1946 and a preliminary decree was passed on 9-1-1947. The preliminary decree passed in favour of the applicant reads as under:
"The suit coming on for hearing this 9th day of January 1947, it is hereby declared that the parties to the suit are entitled to separate possession of the property mentioned in the Schedule hereto annexed in accordance with the shares specified below :
2. And it is further ordered and decreed that -- A Commissioner will be appointed to partition the house and the moveables on application by the plaintiff, and on deposit of fess for payment to the Commissioner.
3. That, if the said Commissioner finds that partition cannot be made equal between the parties according to their respective rights without prejudice to the rights and interests of some of them he shall report the amount of compensation to be made by the parties for equality of partition.
4. All parties to this suit shall produce before or give inspection to the Commissioner of all the property to be partitioned by him and all documents relating thereto, as are in their possession or power.
5. Thai, of the property mentioned in the schedule the Commissioner shall not partition the following property :--
Fields as described in Schedule A annexed with the decree.
For the partition of this revenue paying estate a precept will be sent to the Collector to partition as per shares given above on an application by the plaintiff and on payment of costs necessary for the purposes.
5A. The Commissioner, who will be appointed hereafter for the partition of house and moveable property as enumerated in Schedule B shall put the parties in their respective share as given above. He shall value the property which is not produced before him for partition. He will saddle the saddle the defendant with the liability for plaintiff's half share in the property not accounted for by him. He shall take account of the profits of the Immovable i.e. the fields ,for the years 1945-46 and 1946-47, and submit a report about it to this Court. He will also determine the amount which would come to the plaintiff's share for the above 2 years.
6. That, the partition shall be effected and report thereof made to this Court on or before the date fixed by this Court hereafter.
7. The plaintiff will get costs of Rs. 10/- as half the Court-fee on plaint, from the defendant. Plaintiff will bear the rest of the costs herself. Defendant will bear his own costs. An order about the costs incurred after the date of this judgment will be passed at the time of making the decree final."
Schedule 'A' of the preliminary decree reads as under:--
" Schedule 'A'
(immovable property i.e. fields)
Partition of this property will be made by the Collector to whom the precept will be issued....)
F.S. No. A.G. R. Rs.
13 23-39 14/-
of mouza Muradabad Paragane Talegaon, Tq. and district Yavatmal.
8 27-39 23/-
1 11-8 12/-
1/1 15-22 9/-
of mouza Fatepur Pragane Talegaon, taluq and district Yavatmal.
1/2 5-2 8/8/
18/2 11-7 11/- "
4. Since the preliminary decree passed on 9-1-1947 also related to agricultural lands,
i.e. estate assessed to land revenue to the Government, relating to the said agricultural lands, final decree also came to be passed on that date itself by the Additional Civil Judge (Class I), Yavatmal, in the following manner :
"this suit coming on for hearing this 9th day of January 1947 before me in the presence of Mr. V. M. Shrikhande, Advocate, for the plaintiff and N. L. Abhyankar, Adv. for the defendant, it is hereby declared that the parties to the suit are entitled to separate possession of the property mentioned in the Schedule A hereto annexed in accordance with the shares specified below :--
It is further ordered and decreed that as the estate to be partitioned is a revenue paying estate, the Collector shall make partion thereof. A precept will be issued to the Collector on an application by the plaintiff and on payment of costs necessary for the purpose and on filing the requisite copies.
Schedule 'A'
(immovable Property)
F.S. No. A.G. R.Rs.
13 23-39 14/-
Situated at mouza Muradabad Pragane Talegaon, taluq & district Yavatmal.
8 27-39 23/-
I 11-8 12/-
1/1 15-22 9/-
Situated at mouza Fatepur, Pragane Talegaon, taluq and district Yavatmal.
1/2 5-2 8/8/
18/2 11-7 11/-
The order about the costs of this suit has been made in the preliminary decree. The costs incurred after the date of this judgment will be passed at the time of making the preliminary final.
Given under my hand and the seal of this Court this 9th day of January 1947."
5. Despite the aforesaid decree having been passed on 9-1-1947 in favour of the applicant, the aforesaid agricultural lands were not partitioned and the applicant was not delivered possession by metes and bounds, since prior to 15-2-1992 the applicant did not make an application for issuance of precept to the Collector. It was only on 15-2-1992 that the applicant made an application before the Civil Judge, Junior Division, Babhulgaon, for issuance of precept to the Collector for partition of the aforesaid agricultural lands, pursuant to the decree dated 9-1-1947. In the year 1960, the original judgment-debtor Bhulai Ramdin Pardeshi died and the non-applicant Nos. 1 to 15, who are his legal representatives, and non-applicant Nos. 16 and 17, who are transferees, were noticed of the said application. Non-applicant Nos. 1 to 15 contested the application filed by the applicant under Section 54 of the C.P.C. for issuance of the precept to the Collector, mainly on the ground that such an application was an application for execution of the decree, which was passed on 9-1-1947, and the application made on 15-2-1992 was barred by time.
6. The Court below heard the learned counsel for the parties and by an order dated 17-10-1992 dismissed the application filed by the applicant under Section 54 of the C.P.C. as time barred. The reasons given by the Civil Judge, Junior Division, Babhulgaon, are contained in para 7 of the order, which reads as under :
"7. It is a settled principle of law and equity that law always helps to the persons who are vigilant about their rights and not to those who have been slept over those rights. In the present case, a decree for partition of the property was passed in the year 1948. Since that time for a period of about more than 40 years present petitioner did not take any action to execute a decree. The decree was executable and enforceable in the year 1947-48. In the year 1947-48 old Limitation Act of the year 1908 was in force. As per Article 182 in those days there was a period 'of limitation of 3 years to file application for execution of a decree or order. Therefore, as per old Limitation Act of the year 1908 within a period of 3 years from 2-1-1948 petitioner should have filed a Darkhast to execute the decree. As per Section 48 of the Civil Procedure Code of the year 1908 there was a period of limitation of 12 years to execute a decree for partition of moveable and immovable property. This period of limitation was also expired in the year 1960 or 1961. Therefore, as per Section 48 of the old C.P.C. of 1908 and as per Article 182 of the old Limitation Act of 1908, the present application to execute the decree and to send the precept to Collector is time barred. Hence, I have no hesitation to hold that the present petition is time barred and, therefore, I answer point No. 1 in the affirmative and pass the following order.
ORDER
The petition is dismissed. No order as to costs."
7. Shri Bapat, the learned counsel appearing on behalf of the applicant, strenuously urged that the order passed by the Civil Judge, Junior Division, Babhulgaon, was bad in law and suffers from serious error of jurisdiction. According to him, the application filed by the applicant on 15-2-1992 was not an application for execution of the decree, but an application pursuant to the decree dated 9-1-1947, praying to the Court that's precept be sent to the Collector for effecting partition of the agricultural lands and such an application is of the nature of the mere proceeding in the suit rather than an application to execute the decree and there is no period of limitation for making such an application. According to Shri Bapat, Article 182 of the Schedule I of the Limitation Act, 1908, had no application, despite the fact that the preliminary decree as well as final decree was passed on 9-1-1947 itself, the application filed by the applicant was only a request to the Court to send the decree to the Collector for effecting partition and such a request to the Court was to do only a ministerial act and would not be governed by Article 182 of the Limitation Act. In support of his contention, Shri Bapat placed strong reliance on the Full Bench decision of this Court in Ramabai Govind v. Anant Daji MANU/MH/0135/1944 : AIR 1945 Bom 338. Shri Bapat submitted that the Full Bench decision of this Court in Ramabai's case (cited supra) has been consistently followed by this Court for almost five decades, and the Court below committed serious error of jurisdiction in not applying the law laid down by the Full Bench of this Court. Shri Bapat has also relied upon the decision in Prabhu Dayal v. Sub-Divisional Officer, Karvi, MANU/UP/0169/1958 : AIR1958All673 ; Narsu v. Narayan Krishnaji AIR 1959 Mys 233 and A. Manjundappa v. Sonnappa AIR 1965 Mys 73.
7A. On the other hand Shri N. K. Fuladi, the learned counsel for the non-applicants, contested the correctness of the contentions raised by the learned counsel for the applicant and strongly supported the reasons given by the Court below in holding that the application filed by the applicant on 15-2-1992 for issuance of precept to the Collector of the decree passed on 9-1-1947 was time barred. According to Shri Fuladi, the application filed by the applicant was a Darkhast for execution of the decree and according to Section 48 of the C.P.C. as was existed prior to 1-1-1964, the period of limitation for execution of the decree for . partition of moveable and immovable property was 12 years and according to him, the said period expired within 12 years from the passing of the decree dated 9-1-1947 or in any case from the expiry of 12 years from the dismissal of the appeal on 2-1-1948. In support of his contentions, Shri Fuladi relied upon the Full Bench decision of the Madras High Court in Sree Rajah Mantripragada Venkataraghavan Rao Bahadur v. Sri Rajah Mantripragada Venkata Hanumantha Rao Bahadur MANU/TN/0111/1945 : AIR 1945 Mad 336, Ningappa Balappa v. Abashkhan Gouskhan, MANU/MH/0200/1956 : AIR1956Bom345 ; Paygonda Survgonda Patil v. Jingonda Surgonda Patil, MANU/MH/0152/1968 : AIR1968Bom198 and Sanjay Dinkar Asarkar v. State of Maharashtra, MANU/SC/0200/1985 : AIR1986SC414 .
8. Prior to 1-1-1964, Section 48 of the C.P.C. was as under :
"48. (1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from--
(a) the date of the decree sought to be executed, or,
(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.
(2) Nothing in this section shall be deemed --
(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application; or
(b) to limit or otherwise affect the operation of article 180 of the second schedule to the Indian Limitation Act, 1877."
9. Section 54 of the C.P.C. reads as under :
"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."
10. Order XX, Rule 18 of the C.P.C. reads as under:
"18. 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 move-able 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."
11. Article 182 of the First Schedule of the Limitation Act, 1908, reads as under:--
"Description of application Period of limitation Time from which period begins to run
182.
For the execution of a decree or order of any Civil Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908.
Three years; or where a certified copy of the order has been registered, six years.
1. The date of the decree or order, or
2. (where there has been an appeal) the final decree or order of the Appellate Court, or the withdrawal of the appeal, or
3. (where there has been a review of judgment) the date of the decision passed on the review, or
4. (where the decree has been amended) the date of amendment, or
5. (where the application next hereinafter mentioned has been made) the date of applying in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree or order, or
6. (where the notice next hereinafter mentioned has been issued) the date of issue of notice to the person against whom execution is applied for to show cause why the decree should not be executed against him, when the issue of such notice is required by the Code of Civil Procedure, 1908, or
7. (where the application is to enforce any payment which the decree or order directs to be made at a certain date) such date.
Explanation I. - Where the decree or order has been passed severally in favour of more persons than one, distinguishing portions of the subject-matter as payable or deliverable to each, the application mentioned in clause 5 of this article shall take effect in favour only of such of the said persons or their representatives as it may be made by. But where the decree or order has been passed jointly in favour of more persons than one, such application if made by any one or more of them, or by his or their representatives, shall lake effect in favour of them all.
Where the decree or order has been passed severally against more persons than one, distinguishing portions of the subject-matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representatives as it may be made against. But, where the decree or order has been passed jointly against more persons than one, the application, if made against any one or more of them, or against his or their representatives, shall take effect against them all.
Explanation II.-- "Proper Court" means the Court whose duty it is to execute the decree or order."
12. Section 48 of the C.P.C. was repealed by the Indian Limitation Act, 1963, with effect from 1-1-1964.
13. In the light of the aforesaid provisions it is to be seen whether the application filed by the applicant on 15-2-1992 was an application for execution of the decree or only a request to the Court to send the papers to the concerned Collector for effecting partition of the agricultural lands. Section 54 of the C.P.C. provides that the decree for partition of the agricultural lands i.e. the estate assessed to the payment of revenue to the Government, or for separate possession of a share of such an estate, passed by the Civil Court, shall be effected by the Collector or any gazetted subordinate of the Collector. In the final decree passed on 9-1-1947 itself, it is ordered that the agricultural lands mentioned in Schedule A of the decree, the Collector shall make partition thereof, and a precept will be issued to the Collector on an application by the plaintiff and on payment of costs necessary for the purpose and on filing the requisite copies. Such an application, which was required to be made by the applicant for issuance of the precept to the Collector, cannot be said to be an application for execution of the decree. Such an application is only a request to the Court to do the ministerial act and is neither governed by Section 48 of the C.P.C., as was existing prior to 1-1-1964, nor governed by Article 182 of the Limitation Act, 1908. The application made by the applicant on 15-2-1992, therefore, was not covered by any of thp provisions contained in the Limitation Act, 1908, or the Limitation Act, 1963, or Section 48 of the C.P.C., as was existing prior to 1-1-1964.
13A. So far as this Court is concerned, the question whether the application filed by the plaintiff asking the Court, which passed the decree for partition and separate possession relating to agricultural lands, i.e. the estate assessed to the payment of revenue to Government, for effecting partition as directed in the decree, can be said to be an application for execution of the decree or not, much debate is not required since it has been answered in unequivocal terms by Full Bench that such an application is not an application for execution of the decree and that such application is not governed by any of the provisions of the Limitation Act, 1908. The Full Bench of this Court in Ramabai Govind's case MANU/MH/0135/1944 : AIR 1945 Bom 338 (cited supra) thus held--
"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 O. 20, R. 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 for 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 its very nature, incapable of execution. So, too, is a decree under O. 20, R. 18(1), Civil P. C. 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 S. 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 S. 54 to receive applications for the execution of such decrees under O. 21, R. 10, Civil P. C. 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 Art. 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 41 Bom LR 921 : MANU/MH/0041/1939 : AIR 1939 Bom 454, 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 Art. 182.
Nor is such an application governed by Art. 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 40 Bom LR 507 : MANU/MH/0174/1937 : AIR 1938 Bom 354, Jesinglal v. Gangadhar, it is only in the case of preliminary decrees in mortgage suits that an application for making it final is expressly required by O. 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 O. 20, R. 18(1), to the Collector, and therefore, Art. 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 Art. 181 or any other Article of the Limitation Act..."
14. In Prabhu Dayal's case MANU/UP/0169/1958 : AIR1958All673 (cited supra) the Allahabad High Court has relied upon the judgment of the Full Bench of this Court (cited supra), and held as under (at p. 676) :
"I am of the opinion that the correct legal position is that when a suit is filed for the partition of a holding under Section 176 of the Act, the Munsif is required to pass a decree declaring the rights of the several parties interested in the property but he should direct such partition to be made by the Collector.
He should after passing that decree transmit the record to the Collector for actual partition even though none of the parties may have made an application for that purpose. There is nothing in Section 54 and Order XX, Rule 18, Civil Procedure Code or any other law which requires an application for transmitting the record being made even in cases which do not fall under the Act and were decided, or are to be decided under S. 54 and Order XX, Rule 18, Civil Procedure Code."
15. The Division Bench of the Mysore High Court in Narsu's case AIR 1959 Mys 233 (cited supra) also followed the Full Bench decision in Ramabai's case MANU/MH/0135/1944 : AIR 1945 Bom 338 and held that an application filed before the Court for issuance of precept which passed the decree, relating to the estate assessed to the payment of revenue to Government, could only be considered as a reminder to the Court to follow up its directions given in the decree. K. S. Hegde, J., as he then was, who delivered the judgment in Narsu's case (cited supra), held as under :
"A decree passed under Rule 18(1) of Order 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 R. 18 does not contemplate any application to be filed by the parties for sending the papers to the Collector. It says that the Court "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 S. 54."
This direction must be deemed to be a part of the decree. Any application filed before the Court which passed the decree to send the papers to the Collector could only be considered as a reminder to the Court to follow up its direction given under sub-rule (1) of R. 18. No period of limitation is provided for such a reminder as the same is not one contemplated by law. In sending the papers to the Collector, the Court is not performing any judicial function; nor is it required to pass any judicial order.
Its function could at best be described as ministerial. It will be inappropriate to call such an application as an execution application. The Court which passed the decree must be deemed to have become functus officio after passing the decree."
In Narsu's case AIR 1959 Mys 233 (cited supra) also, the decree-holders tried to put into effect the partition decree, which had been passed over 40 years prior to the filing of the application in question. The Division Bench of the Mysore High Court held that so long as there is no law prohibiting the partition of the property after a fixed period of limitation, the decree-holders cannot be deprived of their rights.
16. The single Judge of the Mysore High Court in A. Manjundappa's case AIR 1965 Mys 73 (cited supra) held as under :
"3. The next contention advanced on behalf of the respondents is that the petition filed in 1959 for transmission of the record and proceedings to the Deputy Commissioner is barred by limitation. There is no force in this contention. It must be observed that such petition is not a petition for execution of a decree because there is no executable decree. It is a petition in a pending suit praying the Court to take the necessary steps for drawing up of a final decree after effecting a division in terms of the preliminary decree. The duty of drawing a final decree is that of the Court and neither the Code of Civil Procedure nor the Limitation Act specifically provides for any application being made for drawing up a final decree."
17. The Full Bench of Madras High Court in Sree Rajah Mantripragada's case MANU/TN/0111/1945 : AIR 1945 Mad 336 (cited supra) on a question being referred to the Full Bench whether when a decree for partition of an undivided estate assessed to the payment of revenue to the Government directs that a partition shall be made by the Collector or any gazetted subordinate of his, the Court which passes the decree has power to hear objections to the partition as made by the Collector or his subordinate and modify that decision, was answered in the negative, and it was thus held--
"The Court which has passed a decree for partition to which S. 54 applies and has sent it to the Collector for the purpose of effecting the partition has no power to hear objections to the partition made by the Collector or his subordinate or to modify the partition."
The ratio of the Full Bench decision of the Madras High Court thus is that the Court which passed the decree becomes functus officio on the passing of the decree. This decision, therefore, does not help the contention raised by the learned counsel for the non-applicants, and the judgment of the Full Bench of the Madras High Court, though not directly applicable to the present case, cannot be said to be inconsistent with the Full Bench decision of this Court in Ramabai's case MANU/MH/0135/1944 : AIR 1945 Bom 338 (cited supra). The two decisions of this Court relied upon by Shri Fuladi, viz., Ningappa Balappa's case MANU/MH/0200/1956 : AIR1956Bom345 and Jingonda Surgonda's case MANU/MH/0152/1968 : AIR1968Bom198 (cited supra) also do not support the argument advanced by Shri Fuladi, the learned counsel for the non-applicants. In Ningappa Balappa's case (cited supra), the Division Bench of this Court relied upon the decision of the Full Bench of this Court in Ramabai's case (cited supra) and held that after a decree for partition of lands assessed to revenue has been passed, the Court has nothing further to do with the decree and the partition is to be effected by the Collector. The Division Bench further held that in such circumstances, therefore, there cannot be any execution proceedings before the Court in the case of such a decree i.e. the decree for partition of lands assessed to revenue. Rather on the basis of Ningappa Balappa's case (cited supra) the Division Bench judgment of this Court, and relied upon by the learned counsel for non-applicants, it can also be said that the application made to the Court which passed the decree for partition of lands assessed to revenue, for issuance of the precept to the Collector, is not and cannot be said to be an application for execution of the decree.
18. Sanjay Dinkar's case MANU/SC/0200/1985 : AIR1986SC414 (cited supra) was a case in which, term 'disposition' occurring in Section 21(2) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act (27 of 1961), was under consideration, and the question was whether that includes disposition made by or under a decree or order of Court, and while considering that question, the Supreme Court thus observed--
"6. We find ourselves unable to accept these submissions. The object of the Act is clear. Under it any land in excess of the ceiling area ceases to belong to the owner with effect from the appointed day. It is no doubt true that Ss. 8 and 9 refer only to partition by act of parties but there is no such qualification in S. 21(2). Though ordinarily the word 'disposition' in relation to property would mean disposition made by a deed or will, the qualifying phrase, namely, "including any transfer in execution of a decree or order of a Court, tribunal or authority" used in S. 21(2) extends the meaning of that term to include any disposition made by or under a decree or order of a Court. Under S. 54 of the Civil P. C., 1908, where a decree 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 is passed, the partition of the estate or the separation of the share is to be made by the Collector or any gazetted subordinate of the Collector, deputed by him in that behalf. Rule 18(1) of O. 20 of the Code makes a similar provision. Thus, in the case of a partition decree of land assessed to the payment of revenue to the Government, the execution of such decree by actually effecting partition and giving separate possession of a share of such land is to be effected by the Collector or any gazetted subordinate, deputed by him in that behalf. The partition decree in the suit filed by the appellant declared that the appellant was entitled to get a one-half share in the suit properties partitioned by metes and bounds and that he was entitled to get possession thereof on ascertaining his half share. The decree further directed that the properties which were agricultural lands mentioned in the schedule thereto were to be partitioned by metes and bounds by the Collector, Akola, under S. 54 of the Civil P. C. The land declared as surplus land or any part thereof possession of which was obtained by the appellant under the said decree would be thus in execution of the partition decree and would be a disposition within the meaning of S. 21(5) of the Act and would be invalid and of no effect."
A bare look at the aforesaid observations in Sanjay Dinkar's case (cited supra) would show that the aforesaid observations have no application to the controversy involved in the present revision application, viz., whether the application made by the applicant on 15-2-1992 for issuance of the precept to the Collector for execution and effecting partition decree dated 9-1-1947 was an application for execution of the decree and was governed by the provisions of the Limitation Act and was barred by time or not.
19. The present decree for partition of agricultural lands paying revenue to the Government, though was passed on 9-1-1947 and the said decree was affirmed in appeal on 2-1-1948 and it was directed in the said decree that the precept will be issued to the Collector on an application by the plaintiff and such application having been made on 15-2-1992 i.e. almost after 45 years of the passing of the decree, such an application for issuance of the precept to the Collector for partition of the lands, is neither barred by any period of limitation nor prohibited under any law. There being no law prohibiting the partition of the property assessed to payment of land revenue after a fixed period of limitation, the applicant could not have been deprived of his rights in having the partition decree dated 9-1-1947 effected through the Collector. Merely because the application for issuance of the precept has been made almost after 45 years of the passing of the decree for partition of the agricultural lands assessed to the payment of land revenue, such an application could not have been dismissed by Court below by applying the principle that law always helps those persons' who are vigilant about their rights and not those who have slept over their rights. No such principle of equity can be made applicable when law of Limitation does not bar making of such an application beyond any period. The Law of Limitation has to be read, as provided in the statute, and it does not spring from the common law of the country or principle of equity. As already observed above, the application filed by the applicant for issuance of precept to the Collector for effecting partition of the decree passed on 9-1-1947 relating to agricultural lands assessed to land revenue, being not an application for execution of a decree, was neither covered under Section 48 of the C.P.C. as was existing prior to 1-1-1964 nor Art. 182 of the Limitation Act, 1908 or any other article of the Limitation Act, 1908, or any of the provisions contained in the Limitation Act, 1963 and, therefore, the Court below committed serious error of law and jurisdiction in dismissing the application filed by the applicant on 15-2-1992 for issuance of the precept to the concerned Collector for effecting partition of the agricultural lands assessed to land revenue, mentioned in Schedule 'A' of the said decree.
20. In the result, this civil revision application is allowed and the order passed by the Civil Judge, Junior Division, Babhulgaon, on 17-10-1992, is quashed and set aside, and the said Court is directed to issue the precept to the concerned Collector pursuant to the decree dated 9-1-1947 in Civil Suit No. 30-A of 1946. No costs.
21. Revision allowed.
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