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2015 DIGILAW 2224 (ALL)

Mamta Singh v. Ram Kripal Singh

2015-08-03

MANOJ KUMAR GUPTA

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JUDGMENT Heard Sri B.P. Singh, learned Senior Advocate assisted by Sri Vivek Kumar Singh on behalf of the petitioner and Sri P.N. Saxena, learned Senior Advocate assisted by Sri K.K. Mishra for the respondent. With their consent, this petition is being disposed of finally at this stage, without inviting a counter affidavit. 2. The respondent instituted Original Suit no.285 of 1992 against Shamsher Singh for specific performance of an agreement for sale allegedly executed by Dhawal Singh, father of Shamsher Singh, in his favour. The suit was decreed ex parte on 30.5.1995. The decree was put to execution by execution case no. 6 of 2006. Therein, the petitioner, who is widow of Shamsher Singh, judgement-debtor filed objections under section 47 C.P.C. contending that the decree passed in the suit is against a dead person in as much as her husband Shamsher Singh was not traceable since the year 1984 and would thus be presumed to have died a civil death. The objections were opposed by the respondent-decree holder. 3. The executing court rejected the objections under Section 47 C.P.C., by impugned order dated 13.8.2013. It held that the executing court cannot go behind the decree. All the pleas, now sought to be raised had already been decided during trial. Accordingly, it did not find any force in the objections filed by the petitioner under Section 47 C.P.C. The order has been affirmed by the revisional court. Apart from endorsing the view taken by the executing court, the revisional court further noted that there is no order by any court holding that Shamsher Singh was not alive on the date decree was passed and consequently, the revisional court did not find any force in the objections filed by the petitioner. The revisional court further noted that in Original Suit No. 262 of 1989, after the death of Dhawal Singh, his son Shamsher Singh was substituted by an order dated 18.8.1992. It further noted that in criminal case no. 2057 of 1991 State v. Dhawal Singh and others, wherein Shamsher Singh was one of the accused, he had appeared in the proceedings until 16.1.1993. For these reasons, the revisional court rejected the plea set up by the petitioner and dismissed the revision. Aggrieved thereby, the petitioner has approached this Court invoking its supervisory jurisdiction under Article 227 of the Constitution. 4. For these reasons, the revisional court rejected the plea set up by the petitioner and dismissed the revision. Aggrieved thereby, the petitioner has approached this Court invoking its supervisory jurisdiction under Article 227 of the Constitution. 4. It is submitted by the learned senior counsel appearing on behalf of the petitioner that the findings recorded by the revisional court that Shamsher Singh had participated in the criminal proceedings until 16.1.1993 is palpably erroneous in law and is perverse. He further submitted that in any view of the matter, since the ex parte decree was passed on 30.5.1995 and there is no evidence on record nor any finding recorded by the courts below that Shamsher Singh was alive on the date the decree was passed and therefore, the revisional court had committed an error on law in dismissing the objections under Section 47 C.P.C. 5. The courts below have held that the question which are now sought to be raised were decided in the suit and the executing court cannot go behind the decree. In taking such view, the courts below seem to have in their mind the order of the trial court passed in the year 1993, while the suit was pending, rejecting an application filed by Israji Devi, mother of Shamsher Singh, for being appointed as his guardian. It is held that the trial court did not find Shamsher Singh to have died, or untraceable or a person of unsound mind. 6. It is not disputed before this Court that in the order passed by the trial court, in the year 1993, rejecting the application filed by Israji Devi, there was no adjudication as to whether Shamsher Singh was alive or had died. The application was for appointment of Israji Devi as guardian of Shamsher Singh and rejection of such an application wherein even the issue whether he had died or was alive, being not involved, could not be termed as a decision by the trial court, which may prevent the executing court from going into such question. Consequently, the view expressed by the courts below in this regard cannot be sustained. 7. Consequently, the view expressed by the courts below in this regard cannot be sustained. 7. The revisional court, though had referred to certain other material in holding that Shamsher Singh was alive until 16.1.1993, i.e., at the time when suit was instituted and subsequent thereto, but, there is no finding in the order of the revisional court that on the date of passing of the decree, i.e., 30.5.1995, he was alive. While deciding the objections under Section 47 C.P.C., the executing court is required to go into the question, which goes to the root of the matter and strikes at the authority of the court to pass such a decree. In case Shamsher Singh was not alive on the date the decree was passed, then there is no doubt in the mind of the court that such a decree would be a nullity in the eye of law. Consequently, it was essential for the courts below to have adverted to such question. 8. Sri P.N. Saxena, learned Senior Advocate very fairly submitted that instead of keeping the matter pending, the impugned orders be set aside and the executing court be directed to decide the controversy afresh, but within a stipulated time, so that the petitioner may not succeed in delaying the execution of the decree. 9. Considering the entire facts and circumstances of the case and the submissions made, the petition is allowed. The impugned order dated 13.8.2013 passed by the Addl. Civil Judge (S.D.) IInd, Court No. 10, Jaunpur and order dated 13.5.2015 passed by Additional District Judge, Court No. 4, Jaunpur are set aside. The matter is remitted back to the executing court for decision afresh on merits after giving opportunity of hearing to both the parties. Sri B.P. Singh and Sri Vivek Kumar Singh, learned counsel appearing for the petitioner have given an undertaking before the Court that the petitioner will not delay the proceedings of the executing court and will not seek any unnecessary adjournment. It is desirable that the objections are decided by the executing court, expeditiously, preferably within a period of three months from the date of production of a certified copy of this order before it. 10. The petition is allowed to the extent indicated above. Petition allowed.