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2014 DIGILAW 537 (JHR)

Nand Lal Sharma v. Raj Kumar Sharma

2014-04-24

D.N.UPADHYAY

body2014
ORDER This Civil Revision has been filed against the order dated 06.09.2013 passed by learned Sub Judge-I, Giridih in Execution Case No.05 of 2013 by which the learned Sub Judge-I has been pleased to reject the petition filed by the petitioner under Section 47 of the Code of Civil Procedure. 2. It is submitted that a petition under Section 47 of the C.P.C. was filed by the petitioner before the Court of Sub Judge-I, Giridih and the learned Court instead of registering miscellaneous case as required under Rule 459 of the Civil Court Rules, summarily rejected the petition by making endorsement on the petition itself. The endorsement so made on the petition was down in the order sheet dated 06.09.2013. The endorsement made by the Court on the petition itself indicates that the Court has not applied judicial mind and hurriedly passed the impugned order without applying judicial mind. The petitioner was not given opportunity to adduce evidence and documents. It was contended before the executing court that the share of judgment debtor no.2 Santosh Kumar Sharma has not been indicated. He has not been made party to the execution proceeding and without indicating share of judgment debtor no.2 Santosh Kumar Sharma, the decree was not possible to be executed and that is why petitioner has raised objection under Section 47 of the C.P.C. The learned counsel relied on the judgment in the case of Mangal Dass (deceased by L.Rs.) V. S.S. Sandhu & Ors. Reported in AIR 1990 Punjab & Haryana 91 and submitted that if a petition is filed under Section 47 of the C.P.C., it is incumbent duty of the Court to register it as a miscellaneous case and opportunity should be given to adduce evidence in support of the objection raised. Petition under Section 47 of the C.P.C. is not required to be rejected summarily. He has further relied on the judgment in the case of Gopal Prasad V. Baushidhar Singh & Ors. reported in AIR 2000 Patna 240 in which petition under Section 22 of the Hindu Succession Act was filed and it was not properly dealt with and hence Hon'ble Court held that every objection, if filed, in execution proceeding that is to be decided after registering miscellaneous case and also after giving opportunity to the parties to adduce evidence. There is no need to register a separate suit. There is no need to register a separate suit. The learned counsel has further submitted that without assigning cogent reason petition filed under Section 47 of the C.P.C. has been rejected by the learned Sub Judge and therefore, impugned order is liable to be set aside. Last but not least, it is submitted that after giving time frame, matter may be remanded to the lower court with a direction to register miscellaneous case and after giving opportunity to the parties proper order may be passed. 3. On the other hand, learned counsel appearing for the opposite party nos.1 to 3 (plaintiffs) has submitted that the judgment debtor no.1 is in habit of filing petition one after another with an intention to delay execution process and that is clearly reflected in the impugned order. On 27.05.2013 petition under order XXI Rule 29 was filed and it was rejected on 30.05.2013 after granting opportunities to the parties but the petitioner has not chosen to challenge the said order before any superior court. Again he has filed show cause on the very same date i.e. 30.05.2013 and it was also dismissed. Thereafter, petition under Section 47 of the C.P.C. was filed on 06.09.2013 which is under challenge. 4. It is further contended that the partition suit no.46 of 2004 was filed by opposite party nos.1 to 3 (plaintiffs) and in the said suit petitioner was made as defendant no.1. The suit was decreed on 28.11.2005 and preliminary decree was sealed and signed on 13.12.2005. The litigation between the parties went upto the Hon'ble Supreme Court and lastly final decree for partition was sealed and signed on 19.12.2012. The petition filed by the opposite party nos.1 to 3 for execution is very clear and it is mentioned in Column(i) that the decree holders do not want to execute the decree against Santosh Kumar Sharma s/o late Jagdish Sharma, defendant no.2, and the schedule of the property for which execution has been sought for is also clearly mentioned. The petitioner has not indicated as to how he will be prejudiced if the decree is executed rather he has contended that the judgment debtor no.2 has not been made party and his share has not been indicated in the petition filed for execution. The petitioner has not indicated as to how he will be prejudiced if the decree is executed rather he has contended that the judgment debtor no.2 has not been made party and his share has not been indicated in the petition filed for execution. The learned Sub Judge has clearly mentioned in the order and it is also apparent from the material on record that judgment debtor no.2 Santosh Kumar Sharma has not raised any objection against execution of decree. Finally, it is submitted that the petition filed is liable to be rejected. 5. Civil Court Rules has been created for proper administration and smooth functioning of Subordinate courts and Rules have been framed for the convenient progress of trial and proceeding. The Rules indicate to segregate and classify the proceedings under different heads. In that context, Rule 459 of the Civil Court Rules indicates, what types of petitions are to be registered as Civil Miscellaneous case for the purpose of maintenance of records. In the case at hand, petition was filed by judgment debtor no.1 raising grievance if the decree is executed it may cause prejudice to judgment debtor no.2 but the judgment debtor no.2 Santosh Kumar Sharma has not come forward with any grievance. No other point has been indicated by the petitioner which may cause prejudice to him if the decree is executed and therefore, the learned Judge has rightly applied judicial mind at the very initial stage when the petition was presented before the Court. Since there was no substance in the objection petition, there was no need to proceed further and it was not needed to register miscellaneous case to consume further time to decide the issue. I do not hesitate to hold, if the Court prima facie finds no substance in the petition filed under Section 47 of the C.P.C. even after giving opportunity to the parties concerned of being heard, the court may dispose it of without registering miscellaneous case in the execution proceeding itself. But it is made clear, this practice may be adopted in a very specific circumstance and particular situation for that sound reasoning is to be given and it cannot be adopted as a rule. But it is made clear, this practice may be adopted in a very specific circumstance and particular situation for that sound reasoning is to be given and it cannot be adopted as a rule. If a petition consisting sound reasoning for objection against execution of a decree is filed under Section 47 of the C.P.C. which cannot be disposed of at the very stage of its presentation then registration of a miscellaneous case as indicated in Civil Court Rules is essential and the parties are to be given opportunity to adduce evidence and place documents and the objection so raised is to be decided in accordance with law. 6. I do not find any substance in the petition filed under Section 47 of the C.P.C. before Sub Judge and the learned Sub Judge has given reasonings for rejecting the same. I do not find any merit in the revision application and accordingly the same stands dismissed.