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2015 DIGILAW 736 (JHR)

Madhuri Devi v. Sundari Mahatain

2015-07-02

SHREE CHANDRASHEKHAR

body2015
ORDER : 1. Aggrieved by order dated 5.12.2014 in Misc. Case No. 22 of 2013, the petitioners have approached this Court by filing the present writ petition. 2. The Title (Partition) Suit No. 25 of 1998 was filed by one Padum Chandra Mahato. In the partition suit one Lakhiram Mahato was the sole defendant. The suit was decreed on 10.5.2000 against which, Title Appeal No. 21 of 2000 was preferred by the original defendant. The Title Appeal No. 21 of 2000 was dismissed on 20.9.2002 and it appears that after the dismissal of the title appeal, the original defendant died. The petitioners are legal heirs and successors of the plaintiff and they are the decree-holders. One Most. Sundari Mahatain claiming herself wife of the original defendant namely, Lakhiram Mahato filed the petition for preparation of final decree. On the application dated 16.6.2004 filed on behalf of the said Most. Sundari Mahatain who is respondent in the writ petition, the proceeding for preparation of final decree commenced however, it proceeded ex-parte and final decree was prepared on 19.2.2007. Thereafter, the said Most. Sundari Mahatain filed an application which was registered as Execution Case No. 20 of 2010, in the proceeding of which Pleader Commissioner submitted a report. It appears that at this stage, an application under Section 47 CPC was filed on behalf of the petitioners which was registered as Misc. Case No. 22 of 2013. The application under Section 47 CPC has been dismissed on 5.12.2014. 3. The learned counsel for the petitioners submits that the final decree dated 19.2.2007 was prepared in the absence of the petitioners and the petitioners had no knowledge of the same. It is further submitted that a challenge to the status of the applicant namely, Most. Sundari Mahatain was raised by the applicants/petitioners in application under Section 47 CPC however, without taking evidence, the trial court has held that the respondent namely, Most. Sundari Mahatain is the legally married wife of deceased Lakhiram Mahato. Relying on a decision in M/s. Century Textiles Industries Ltd. vs. Deepak Jain and Another, 2009 (3) JLJR 153 (SC) the learned counsel for the petitioners submits that the question which may arise between the parties to a suit must be decided by the executing court and for adjudicating those questions separate suit is not required to be filed. Relying on a decision in M/s. Century Textiles Industries Ltd. vs. Deepak Jain and Another, 2009 (3) JLJR 153 (SC) the learned counsel for the petitioners submits that the question which may arise between the parties to a suit must be decided by the executing court and for adjudicating those questions separate suit is not required to be filed. It is submitted that in the M/s. Century Textiles Industries Ltd. case, identity of judgment debtor was questioned and it has been held by the Hon'ble Supreme Court that such question can decided by the trial court. In the present case also, the status of Most. Sundari Mahatain has been challenged by the petitioners however, the said issue has not been properly decided by the trial court. 4. From the material brought on record, it appears that there is no dispute in so far as, final decree dated 19.2.2007 being prepared at the instance of respondent Most. Sundari Mahatain is concerned. The petitioners have contended that the final decree was prepared in their absence however, it is not in dispute that final decree dated 19.2.2007 has not been challenged by the petitioners by filing an appeal. In application under Section 47 CPC, the petitioners have asserted that the said Most. Sundari Mahatain is not the legally wedded wife of the deceased namely, Lakhiram Mahato and therefore, the share of Lakhiram Mahato cannot be allocated to Most. Sundari Mahatain. It has been contended by the petitioners that after the death of defendant namely, Lakhiram Mahato his share would devolve upon the plaintiffs. 5. The trial court has recorded that the said Most. Sundari Mahatain has filed documents relating to pension paper of the deceased Lakhiram Mahato. She has also produced Election Commission's identity card, Aadhar card, ration card etc. which have been issued by the government authorities. In my opinion by not challenging the final decree dated 19.2.2007 which was prepared at the instance of Most. Sundari Mahatain, the petitioners have accepted her status as legal heir and successor of the original defendant. 6. In view of the fact that the final decree has been prepared at the instance of Most. Sundari Mahatain and the said final decree has not been challenged by the petitioners by filing an appeal, I am of the opinion that under section 47 CPC the status of the said Most. 6. In view of the fact that the final decree has been prepared at the instance of Most. Sundari Mahatain and the said final decree has not been challenged by the petitioners by filing an appeal, I am of the opinion that under section 47 CPC the status of the said Most. Sundari Mahatain not being legally wedded wife of the deceased Lakhiram Mahato, cannot be agitated by the petitioners. The executing court cannot go behind the decree and therefore, the status of said Most. Sundari Mahatain could not have been adjudicated by the trial court. I find that the trial court has however, recorded a finding that in view of the documentary evidence produced by the said Most. Sundari Mahatain, objection raised on behalf of the petitioners was baseless and frivolous and it was filed to delay the execution proceeding. I find no infirmity in the impugned order dated 5.12.2014. In the result, the writ petition is dismissed.