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2013 DIGILAW 325 (HP)

Nishant v. Krishan Lal

2013-04-18

KULDIP SINGH

body2013
JUDGMENT : Kuldeep Singh, J. This revision is directed against the order dated 19.12.2012 passed by learned Civil Judge(Junior Division), Court No.2, Nalagarh, in Execution Petition No.1/10 of 2010. 2. The further relevant facts are that respondent had filed a Civil Suit No. 126/1 of 2005 against one Amar Nath for mandatory injunction and in the alternative for possession etc. The suit was decreed by learned Civil Judge(Senior Division), Nalagarh, on 15.10.2008. The relevant part of the decree passed is as follows: "This suit is coming on the day for final disposal before me Madan Kumar, Civil Judge (Sr.Div.) Nalagarh in the presence of Shri R.D.Thakur, Advocate, for plaintiff and Shri D.K.Kaushal, Advocate, for defendant. It is ordered that the suit of the plaintiff is decreed with costs for mandatory injunction by directing the defendant to quit and hand over the vacant possession of the suit property measuring 56.64 Square metres as shown in the site-plan annexed with the sale deed Ext.PW1/A, consisting of two rooms, one kitchen, one bath room, one water closet, courtyard, staircase etc. as shown in the site-plan annexed with the sale deed Ext. PW1/A, out of which property measuring 134.69 Sq. Metres, bearing Khasra No.1010/627, 628, 629 and 630, comprised in khata-khatauni No. 154/167, situated in the area of Mini Secretariat, Ward No.2, Nalagarh, Tehsil Nalagarh, District Solan, H.P as per jamabandi for the year 1997-98. The suit of the plaintiff is also decreed for mesne profits with effect from filing this suit i.e. 30.05.2005 till passing of decree at the rate of Rs. 3,000/- per month. The plaintiff is directed to make the deficiency of court fee good with regard to his claim of mesne profits within 30 days from passing of this decree, failing which the suit of the plaintiff qua mesne profits shall be deemed to have been dismissed. Court fee filed on 6.11.2008." The appeal filed against decree dated 15.10.2008 was also dismissed. 3. The respondent filed execution petition in which petitioners filed objections under Section 47 of the Code of Civil Procedure mainly on the ground that the suit property is ancestral property of the petitioners. They were not impleaded parties in the suit and, therefore, decree is not executable against them. 3. The respondent filed execution petition in which petitioners filed objections under Section 47 of the Code of Civil Procedure mainly on the ground that the suit property is ancestral property of the petitioners. They were not impleaded parties in the suit and, therefore, decree is not executable against them. It has been submitted by learned counsel for the petitioners that petitioners have also filed separate suit for declaration before Civil Judge (Junior Division), Nalagarh, assailing the decree dated 15.10.2008. In that suit, the petitioners also filed an application for interim relief for staying the execution of the decree dated 15.10.2008, but that application has been dismissed. The learned counsel for the petitioners has also stated that grandfather of the petitioners had also filed separate similar objections against decree dated 15.10.2008 which were dismissed. 4. The Section 47 of the Code is as follows:- "47. Questions to be determined by the Court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passed, or their, representatives, and relating to 3 the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of party, such question shall, for the purposes of this section, be determined by the Court. Explanation I. For the purpose of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II. (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section." 5. The petitioners are not the representatives of the defendant. The petitioners are claiming the property as ancestral property. The suit was filed by respondent against Amar Nath which has been decreed. The objections filed by petitioners apparently under Section 47 of the Code are not maintainable. The petitioners are not the representatives of the defendant. The petitioners are claiming the property as ancestral property. The suit was filed by respondent against Amar Nath which has been decreed. The objections filed by petitioners apparently under Section 47 of the Code are not maintainable. The executing Court has rightly appreciated the material on record while dismissing the objections of the objectors. There is no error of jurisdiction. No fault can be found in the impugned order. There is no merit in the petition, hence dismissed, so also the pending application.