Bombay High Court

MAHEBOOB KHAN MUZAFFER KHAN SINCE DECEASED THR LRSversusAZIZ AHEMAD KHAN MUZAFFAR KHAN DIED THR LRS ANISA BEGUM AZIZ KHAN DIED THR LRS AND ANOTHER

Disposal: DISPOSED OFF
Bench: S G CHAPALGAONKAR

Holding

The decree must be executed based on the shares already determined by the trial court, and the petition to quash the appointment of a Court Commissioner was dismissed.

Summary

The petitioners challenged a order dated 06.01.2026 appointing a Court Commissioner for the execution of a decree of partition in a civil suit concerning a house and three shops. They argued that the decree was passed against deceased parties and that the execution court should determine the individual shares of the legal representatives before appointing a commissioner. The High Court observed that the trial court had already fixed the parties' shares in the decree and that execution must follow those determinations, not re‑determine shares of heirs. The Court also noted that the earlier order appointing a commissioner had been set aside because it exceeded the limited prayer sought, but the present order was a fresh application for a commissioner and therefore not barred. Consequently, the Court found no merit in the petition and dismissed the writ petition.

Issues considered

Whether the execution court must ascertain the individual shares of legal representatives of deceased parties before executing a decree of partition.
Whether the earlier order appointing a Court Commissioner, which was set aside, affects the validity of the current order appointing a commissioner.
Whether a decree passed against deceased parties can be executed without amendment to the shares allotted.

Subjects

partition
execution of decree
court commissioner
legal representatives
deceased parties
civil suit
writ petition

Judgment

2026:BHC-AUG:7948
                                           (1)                      wp-1726-2026.odt



                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                             WRIT PETITION NO. 1726 OF 2026

                 MAHEBOOB KHAN MUZAFFER KHAN SINCE DECEASED
                                         THR LRS
                                         VERSUS
                  AZIZ AHEMAD KHAN MUZAFFAR KHAN DIED THR LRS
                ANISA BEGUM AZIZ KHAN DIED THR LRS AND ANOTHER
                                              ...
               Mr. A. A. Mukhedkar, Advocate for the Petitioner.
                                              …
                                      CORAM : S. G. CHAPALGAONKAR, J.
                                      DATED : 17th FEBRUARY, 2026.
               FINAL ORDER.:-

               1.    The petitioners impugns order dated 06.01.2026 passed

               below Exhibit-49 by Civil Judge Senior Division at Nanded in

               Special Darkhast No.10/2018, whereby Executing Court has

               appointed Court Commissioner for execution of decree of partition

               and separate possession in respect of house properties.


               2.    Mr. Mukhedkar, learned Advocate appearing for petitioners

               submits that decree has been passed against dead persons. The

               Executing Court has not decided individual rights of legal

               representatives, who are brought on record in execution of decree.

               Previously similar attempt of appointment of Court Commissioner

               vide order passed below Exhibit-27 has been dislodged by order of

               this Court in Writ Petition No.1329/2024 dated 13.03.2025.

               Ignoring directives given by this Court, Executing Court has again

               passed impugned order appointing Court Commissioner for
                            (2)                       wp-1726-2026.odt



execution of decree. He would, therefore, urge to quash and set

aside impugned order.


3.    Having considered submissions advanced, it can be observed

that Special Civil Suit No.50/1989 has been instituted before Civil

Judge Senior Division at Nanded for relief of partition and

separate possession in respect of one house property and three

shops. During pendency of suit, some of plaintiffs and defendants

expired. However, title clause of decree passed in 2005 shows that

legal representatives of respective parties were brought on record.

It appears that, after passing decree again some of parties were

dead and, therefore, while filing execution of decree, legal

representatives of deceased parties are brought on record.


4.    On the basis of aforesaid development, Mr. Mukhedkar

submits that Executing Court is under obligation to determine

individual share of legal representatives of original parties in suit.

The aforesaid contentions cannot be countenanced for simple

reason that shares of plaintiffs and defendants in original suit have

been determined by Trial Court under decree.          This is not a

execution of any decree passed amongst legal representatives of

original parties. Therefore, execution of decree has to be

undertaken on the basis of shares determined by Court while

passing decree in Special Civil Suit No.50/1989.            The legal

representatives of respective parties may further seek their
                               (3)                    wp-1726-2026.odt



partition by filing separate proceeding, which can not be subject

matter of execution of decree in present suit.


5.      Although Mr. Mukhedkar relies upon observations of

Supreme Court in case of Maddineni Koteswara Rao Vs.

Maddineni Bhasaka Rao and Anr.1 to contend that in case of

death of family member to whom share is allotted Court can amend

share suitably, observations made by Supreme Court are in

different context where composition of shares allotted under decree

was changed after passing of decree.        Such is not situation in

present case.


6.      So far as second contention raised by Mr. Mukhedkar that in

Writ     Petition No.1329/2024 earlier order appointing Court

Commissioner for partition has been set aside by this Court, on

perusal of order passed by this Court, it appears that, contention of

Mr. Mukhedkar are fallacious. The order passed below Exhibit-27

in Special Darkhast No.10/2018 was subjected to challenge in said

Writ Petition.       The application below Exhibit-27 was filed with

limited prayer for appointment of Court Commissioner for

inspection of suit property to ascertain its condition.       However,

Trial Court had appointed Commissioner for partition of share,

which was beyond prayers employed in Exhibit-27.                In this

background, this Court had set aside order passed below Exhibit-27

1    2009 AIR SCW 5319.
                             (4)                     wp-1726-2026.odt



and relegated matter back to Executing Court for decision afresh

on Exhibit-27.


7.      The impugned order in present Writ Petition is passed on

Exhibit-49, which was independently filed with specific prayer to

appoint Court Commissioner for partition of suit property.


8.      In that view of matter, this Court do not find any merit in

Writ Petition. In result, Writ Petition stands dismissed.



                                     (S. G. CHAPALGAONKAR)
                                              JUDGE
Devendra/February-2026

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