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1981 DIGILAW 9 (SIK)

Sunil Chandra Jain v. Jitan Panwala

1981-12-10

A.M.BHATTACHARJEE, MAN MOHAN SINGH GUJRAL

body1981
Judgement BHATTACHARJEE, J. :- Having heard the learned counsel for both the parties and having gone through the records ourselves, we have no doubt that the ap­peal has no merit and must fail, and that the learned District Judge has right­ly rejected the application filed by the Appellant under S.47 of the Civil P.C. 1908. 2. The facts necessary for the disposal of the appeal may shortly be stated. An ex parte decree for eviction was passed by the learned District Judge in favour of the landlord/decree-holder against the tenants judgment-debtors and the decree-holder has put the decree into execution. The appellant before us has filed an ob­jection under S.47. Civil P.C. 1908, to the execution of the said decree mainly on the ground that the predecessor of the judgment- debtors surrendered the tenancy in respect of the suit premises in favour of the landlord/decree-holder long before the suit and the appellant was then inducted as a tenant by the landlord/decree-holder and is in posses­sion of the suit-premises since then as such tenant. And the objector according­ly contended that he not having been made a party to the ejectment suit, the decree is not binding on him. This is how the appellant, figuring as the ob­jector in the execution proceeding has made out his case in paragraph 4 of his application under Sec.47 of the Civil P.C. :- "4. The objector is a tenant under the plaintiff/decree-holder in respect of the premises in question since 30-6-75 on a monthly rental of Rs. 250/- rupees two hundred and fifth only and the said defendant/judgment-debtorswere not ten­ants under the plaintiff/decree-holder and as such the decree passed against the judgment-debtor is not binding upon the objector." 3. This being the case of the appel­lant-objector, it is difficult to understand how he can object under Sec.47 of the Civil P.C. to the execution of the decree to which he was admittedly not a party. If, as the objector contends, he is now the tenant in respect of the suit premises under the landlord/decree-holder, but still the latter has obtained a decree of ejectment only against his earlier ten­ants, the objector can simply ignore the decree and may even resist or obstruct the execution of the decree. And if the decree-holder applies to the Court com­plaining of such resistance or obstruction under O.21. And if the decree-holder applies to the Court com­plaining of such resistance or obstruction under O.21. R.97, Civil P.C. the Court shall make an order dismissing the ap­plication if "the Court is satisfied that the resistance or obstruction was occasioned" by the objector "claimant in good faith to be in possession of the property on his own account or on account of some person other than judgment-debtor." But that is entirely a different matter about which we are not obviously required to express, nor are expressing, any opinion. 4. Assuming arguendo that the ob­jector is, as he contends, the direct ten­ants of the landlord/decree-holder in re­spect of the suit-premises, let us further assume that he is accordingly a repre­sentative of the decree-holder, without entering into the question whether a lessee has a separate estate or can be re­garded to be a representative of the lessor. But S.47, Civil P.C. on its clear terms, applies to questions only "between the parties to the suit, or their re­presentatives" and cannot apply to questions between a party and his own representative. No citation should be necessary for this too obvious a proposition; but yet reference may be made to the Full Bench decision of the Madras High Court in Thondam Annamalai Mudali v. Tiruttani Ramaswami Mudali (AIR 1941 Mad 161) and also to the Full Bench decision of the Lahore High Court in Surinder Nath v. Ram Sarup (AIR 1944 Lah 294), both of which are clear auth­orities for the proposition that S.47 can­not apply to a case where the dispute arises between a party and his own re­presentative. On his own case, therefore the objector has no locus standi under S.47 and his objection must accordingly fail. 5. By filing a supplementary Memo of Appeal, the objector has urged that in the original suit, three of the tenants/ judgment-debtors were minors and were not properly represented by a guardian and, therefore, the ex parte decree pass­ed therein, which is now sought to be executed, was without jurisdiction and is a nullity. It is no doubt settled that though ordinarily the executing Court cannot go behind the decree, it can go into the question as to whether a decree is a nullity and, as such, cannot be executed. It is no doubt settled that though ordinarily the executing Court cannot go behind the decree, it can go into the question as to whether a decree is a nullity and, as such, cannot be executed. From the re­cords, however, it appears and the learn­ed District Judge has also noted in his judgment that the three tenants/ judgment-debtor, being two sons and a daughter of the previous tenant, were represented by their mother and natural guardian who herself was one of the tenants-defendants. It further appears that she also put in appearance for her­self and as a guardian of her minor sons and daughter: but as no appearance thereafter was made by her either for self or on behalf of her minor children they were proceeded ex parte. Prima facie, therefore, there does not appear to be any violation of the provisions of O.32, R.3. But, if as urged by the ob­jector, the minors were not properly re­presented then the minors were not parties to the present suit or the impugned decree passed therein. The expression "party" must mean a party who has been properly made a party and a minor not duly represented is never such a party. This was decided by the Privy Council as early as in 1909 in Rashid-un-Nisa v. Muhammad Ismail Khan (1909) ILR 31 All 572, where in a suit a minor not having been properly represented by a "guardian", it was held (at 582) that "S.244 of the Civil P.C. (of 1882, cor­responding to S.47 of the present Code of 1908) applies to questions arisingbetween the parties to the suit in which the decree was passed, that is to say, between the parties who have been properly made parties in accordance with the provisions of the Code" and that the minor who was not properly represented was not such a party. That this is the law under the present Code of 1908 also will appear from the decision of the Calcutta High Court in Kalipada Sirkar v. Harimohan Dalal (AIR 1917 Cal 844), where this Privy Council decision has been relied on. 6. That being so, even if the minors were not properly represented, they could not come under S.47 and, therefore, the objector who even does not claim through or under them, cannot but be out of Court. 7. The appeal, therefore, fails and is dismissed, with no order as to costs.