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Allahabad High Court · body

1986 DIGILAW 624 (ALL)

Gopal Krishna v. Additional District Judge, Nainital

1986-08-25

A.N.VARMA

body1986
JUDGMENT A.N. Vrema, J. - Having heard the learned counsel for the petitioners, I find no merit in this petition. It appears that the respondent no. 3 Hari Shankar obtained a decree for ejectment against Ghasi Ram, the respondent no. 4, herein, who is the father of the petitioners, from a residential house. Pursuant to that decree, Hari Shankar filed an application for execution which was registered as Execution Case No. 13 of 1983. During the pendency of the execution proceedings, the petitioners filed an objection purporting to be under Section 47 of the Code of Civil Procedure. In this objection, they asserted that after the aforesaid decree, Hari Shankar had entered into a compromise with the petitioners recognising them as owners of the property and further agreeing that they would not dispossess them in execution of the decree obtained against their father. The arrears of the rent decreed against the father were also stated to have been given up. 2. The above objection was contested by the decree-holder. The executing court rejected this objection both on merits and on the ground that Section 47 of the Code of Civil Procedure was not available to the petitioners as they were no parties to the suit in which the decree in question was passed as well as on the ground that the alleged compromise deed set up by the petitioners had neither been proved according to law, nor did it appear to be genuine. 3. The order passed by the executing court was upheld in a revision filed by the petitioner. The revisional court endorsed both the findings recorded by the executing court. 4. For the petitioners, it is urged that the petitioners could not be evicted in execution of the decree passed in favour of their father. In support, learned counsel placed reliance on a decision reported in 1974 Madhya Pradesh page 26. 5. In the view that I am taking, namely, that, it is not a fit case for interference under Article 226 of the Constitution of India, it does not seem necessary to express any opinion on the merit of this legal submission. 6. It is not disputed that in regard to the rights claimed by the petitioners in the property in dispute, they have already filed a regular suit for establishing their title. 6. It is not disputed that in regard to the rights claimed by the petitioners in the property in dispute, they have already filed a regular suit for establishing their title. Further both the courts below have on a reasoning which is perfectly sound concurrently held that the petitioners had failed to establish the compromise, which is the foundation of the objection filed by them against the execution of the decree. The finding recorded by the executing court is that the compromise deed does not appear to be a genuine document. It has also been rightly observed that the document was compulsorily registerable and not being registered the same could not be read in evidence. 7. The petitioners are admittedly the sons of the judgment debtor. They have obstructed the proceedings after the decree had become final against their father. They filed the aforesaid suit for declaration of their title only when the decree holder made an application for execution of his decree. Their objection has been held by both the courts below to be totally devoid of any merit. On the facts of the present case, the conclusions reached by the courts below appear to be correct. As regards the title claimed by the petitioners the same will be adjudicated in the regular suit already filed by them. 8. For all these reasons, I see no ground for exercising my discretionary powers under Article 226 of the Constitution in favour of the petitioners. 9. In the result, the petition is dismissed summarily. The interim orders are hereby vacated.