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1996 DIGILAW 19 (RAJ)

Maharunnisa v. Kulsum Begum

1996-01-04

ARUN MADAN

body1996
Honble MADAN, J. – This revision petition is directed against the order dated 20th July, 1995 passed by the learned Civil Judge, Jaipur City, Jaipur in Objection Case No. 187/93 against the execution of the decree whereby the trial Court decreed the suit of the respondents-decree-holders against the judgment debtors, objectors-petitioners. (2). Shri Patodia, learned counsel for the petitioner has contended that the petitioner is a tenant of one Shri Abdul Gaffar in the eastern half portion of shop bearing Municipal No. 326(1178) situated in Chandpol Bazar, Jaipur. Abdul Gaffar, the predecessor-in-interest of the decree holders-non-petitioners and Mohd. Rafeeq, Abdul Aziz and Abdul Mazid were co-sharers in the disputed shop. While Abdul Gaffar had half share in the disputed shop, the other half share belong to the respondents-decree- holders. It has been further contended by the learned counsel for the petitioner that Abdul Gaffar filed a suit for ejectment against the decree-holders-non-petitioners claiming half of the share in respect of shop premises which was dismissed by the trial Court on 10.2.69 on the ground that since the shop was undivided, the suit for ejectment of the tenants from undivided shop was not maintainable. Thereafter Abdul Gaffar-non-petitioner filed a suit for partition of the disputed premises and also claiming relief in respect of some other property. In this suit the preliminary decree was passed by the trial Court on 19.2.73 declaring half share of the Abdul Gaffar in the disputed shop premises. The suit was finally decreed on 27.7.85 as a result of which the eastern half portion of the above shop was allotted to Abdul Gaffar. Learned counsel for the petitioner has assailed the final decree in this revision as well as the order dated 20th July, 1995 by which the objections preferred by the petitioner under Section 47 of the CPC were dismissed by the Executing Court on the ground that since the decree had become final it was not open to challenge before the said Court and that the Executing Court was primarily concerned with the compliance of the decree. It was further contended by Shri Patodia, that after the partition of the shop in question, its eastern half share had fallen to the share of the legal heirs of deceased Abdul Gaffar. It was further contended by Shri Patodia, that after the partition of the shop in question, its eastern half share had fallen to the share of the legal heirs of deceased Abdul Gaffar. The non-petitioners who are the legal heirs of Abdul Gaffar moved to the Executing Court for execution of the decree which had attained the finality in the partition suit and prayed to the Executing Court for delivery of the physical possession of half portion of the shop premises in question which was under the tenancy of the petitioners. (3). Thereafter the petitioners filed a suit for permanent injunction againt Abdul Gaffar for restraining him from taking possession of the disputed shop in execution decree. An application under Order 39 Rule 1 & 2 CPC was also filed claiming relief of interim injunction during the pendency of the suit. The learned trial Court accepted the application for temporary injunction against which the nonpetitioners-decree-holders preferred an appeal which was allowed by the Addl. District Judge No.3, Jaipur City, Jaipur on 3.9.93. The petitioners assailed the said order of the learned A.D.J. by preferring a revision petition before this Court which was dismissed on 18.10.94 holding that the suit filed by the respondents was not maintainable. It was held by this Court that all the objections which had been raised before this Court and were taken up before this Court were to be taken before the Executing Court and not by way of a separate suit. Thereafter the petitioners had a second round of filing objections before the Executing Court which too have been dismissed by the Executing Court vide its impugned order dated 20th July, 1995 against which this revision petition has been preferred. (4). In support of his contentions advanced at the Bar Shri Patodia, learned counsel for the petitioners has placed reliance upon the following judgments:– Sushil Kumar Mehta vs. Gobind Ram Bohra (dead) L.Rs. (1), Sunder Dass vs. Ram Prakash (2), Chandrika Misir & anr. vs. Bhaiyalal (3), Smt. Kaushalya Devi & Ors. vs. K.L. Bansal (4), Farozi Lal vs. Man Mal & Anr. (5), R.M. Seshadri vs. K.K. Chari (6), Nagiadas Ramdas vs. Dalpatram Ichharam, Brijram & Ors. (7), Bahadur Singh & Anr. vs. Muni Subrat Dass & Anr. (8), Mohd. Zaki vs. Lekh Rajlaj, (9), Sohawa Singh vs. Kesar Singh & Ors. (10), Joseph Abraham vs. Ouseph Eapen & Ors. vs. K.L. Bansal (4), Farozi Lal vs. Man Mal & Anr. (5), R.M. Seshadri vs. K.K. Chari (6), Nagiadas Ramdas vs. Dalpatram Ichharam, Brijram & Ors. (7), Bahadur Singh & Anr. vs. Muni Subrat Dass & Anr. (8), Mohd. Zaki vs. Lekh Rajlaj, (9), Sohawa Singh vs. Kesar Singh & Ors. (10), Joseph Abraham vs. Ouseph Eapen & Ors. (11) and Ram Nath vs. Neta (12). (5). I have perused all the judgments cited above and in my considered opinion the ratio of the aforesaid judgments is neither attracted nor applicable to the facts of this case since I am of the opinion that a decree which has attained finality is not open to challenge in the revision petition and the proper course for the petitioners was to have preferred an appeal before the appropriate forum which I am informed was preferred before the learned A.D.J. and the same was dismissed on merits on 21.3.90 and thereafter no second appeal was preferred before this Court and hence the decree having achieved finality is not open to challenge in this revision petition. I am further of the opinion that the learned trial Court as well as the First Appellate Court recorded well reasoned findings and there is no error, illegality or improperiety in the impugned order dated 20.7.95. The revision petition, being devoid of merit is consequently dismissed.