The fall out of above discussion is that in cases of contravention of provisions of law or transgression of law or non-enforce-ability of the decree for partition on account of events occurring subsequent to the passing of such decrees or in relation to the similar such grievances, the limited control which can be exercised by the Civil Courts can be only by way of an independent suit. Indeed the Civil Court would be entitled to entertain such grievances only by way of an independent suit. The bar for suit under Section 47 of C.P.C. could be applicable only in cases where the question can be determined by the Court executing the decree. Once it is clear that the Civil Court, is not the Court executing the decree for partition of the estate which is subject to the assessment for payment of revenue to the Government, the bar provided under Section 47 of C.P.C. for an independent suit by the parties to the decree cannot come in the way of the party approaching the Court with such suit regarding the grievance in relation to the execution of the partition decree. Undoubtedly, the scope of such suit will be subject to the other laws which may bar the jurisdiction of the Civil Court to entertain the suit. For example, in cases of the questions to be determined under the said Act, certainly the Civil Courts will have no jurisdiction to entertain any suit in that regard. It will be exclusively for the competent authority under the said Act to decide those issues in view of the provisions of Sections 36-A and 36-B of the said Act read with the decision of the Apex Court in Shavantabai Maruti Kalhatkar (supra).
40. Reverting to the facts of the case in hand, the contention regarding Watap-takta being contrary to the decree and fact of acquisition of the property subsequent to the issuance of decree, having not been considered by the Tahsildar, and the said issues being directly relating to the execution of the decree passed in the suit, certainly can be raised by the aggrieved party by filing a suit and not by way of an application under Section 47 of Code of Civil Procedure. It cannot be disputed that if subsequent to the declaration of the shares in the properties which were subject-matter of the suit for partition, some of properties were acquired by the Government and ignoring the said fact of acquisition of properties, the revenue authorities proceeded to partition the properties, certainly such a partition will be contrary to the decree, inasmuch as that some of the parties may not get the properties according to the declaration of their shares. Such a grievance can certainly be looked into by the Civil Court if brought to the notice by filing a proper suit in that regard. Similar is the case as regards the ground of the violation of the provisions of the said Act.
Prakash Nathyaba Bhosale vs Laxman Ganaba Bhosale on 8 August, 2002
Equivalent citations: AIR 2003 Bom 41, 2003 (1) BomCR 218
Bench: R Khandeparkar
