- (1.) Leave granted.
(2.) Whether an application for initiating a final decree proceedings in terms of Section 54 of the Code of Civil Procedure, 1908 (for short, "the Code") would be governed by any provision contained in the Schedule appended to the Limitation Act, 1963 is the question involved in this appeal which arises out of a judgment and order dated 12.2.2007 passed by the High Court of Judicature at Bombay in Writ Petition No. 7382 of 2005.
(3.) A suit for partition was filed by the respondents herein claiming 1/3rd share in the joint family property. The said suit was registered as Regular Civil Suit No. 145 of 1969. A decree was passed therein on or about 27.6.1975, the relevant portion whereof reads as under: "It is hereby declared that Plaintiff, Defendant No. 1 and 2 each have 1/3 share in the suit property described in the schedule 7 to the plaint. Plaintiff do recover separate possession of the land excluding the lands which are in the possession of Defendant No. 7 and of the house property. The partition of the land shall be effected by the Collector in the execution proceedings, under Section 54 C.P.C. Partition of the house property shall effect by the Commissioner to be appointed in the execution proceedings. The suit against Defendant No. 7 is dismissed with costs. Other parties should bear their own costs." Indisputably, the learned trial judge did not send the decree to the District Collector for partition in terms of Section 54 of the Code of Civil Procedure. An appeal preferred thereagainst by the appellants was dismissed for default on or about 7.9.1978.;