ORDER : Shri D.D. Bansal, learned counsel for the petitioners. Shri R.K. Soni, learned counsel for respondents No. 1 and 2/Caveater. Heard on admission. 2. The present civil revision under section 115 of the Code of Civil Procedure, 1908, has been preferred by the petitioner against the order dated 20-7-2018 passed by the executing Court (Civil Judge Class-I, Chachoda) in Execution No. 93-A/2002 whereby the application dated 29-6-2016 under section 47 read with section 151 of Civil Procedure Code and another application dated 6-7-2018 under section 47 read with section 151 of Civil Procedure Code filed by the petitioners, have been dismissed. 3. Precisely stated facts of the case are that Brijmohan Das (now deceased) and Usha Bansal instituted a suit on 2-5-1990 for declaration of title and permanent injunction against the defendants which was later on amended seeking the relief of possession and mesne profits. Defendants appeared and contested the suit by filing written statement. During pendency of the suit, plaintiff No. 1 Brijmohan Das died on 14-9-1996 hence his wife Shyamlata moved an application for substitution on 18-11-1996 showing herself to be the only legal heir. It appears that one Abhishek claimed himself to be adopted son of plaintiff No. 1 Brijmohan Das and also moved an application on 12-12-1996 which was considered and trial Court vide order dated 26-11-1999 ordered to substitute name of Shyamlata. It further appears that on 17-12-1999 an application preferred by Abhishek was dismissed due to non appearance of Abhishek or his counsel and case was fixed for evidence of plaintiffs. After trial, the suit ultimately dismissed but at the same time, trial Court granted decree of specific performance in favour of defendants vide judgment and decree dated 29-10-2005. 4. First appeal was preferred by Shyamlata along with Usha Bansal and the same was allowed and joint decree in their favour was passed on 6-2-2007 showing Shyamlata to be wife of plaintiff No. 1/decree-holder. Aforesaid judgment and decree was challenged by way of second appeal bearing No. 211/2007 before High Court and vide judgment dated 21-10-2010 the same was dismissed and judgment and decree of first Appellate Court attained finality. 5. Thereafter the decree-holder Shyamlata and Usha Bansal filed an application for execution of decree of possession and mesne profits against the present petitioners and other respondents No. 3 to 8 only.
5. Thereafter the decree-holder Shyamlata and Usha Bansal filed an application for execution of decree of possession and mesne profits against the present petitioners and other respondents No. 3 to 8 only. Several objections were raised by the petitioners by moving an application under section 47 of Civil Procedure Code and thereafter the petitioners raised supplementary objections by way of another application under section 47 of Civil Procedure Code contending that upon the death of plaintiff No. 1 Brijmohan Das, Shyamlata got herself substituted as his only legal representative whereas other Class-I legal heirs of plaintiff No. 1 was existing and therefore, the suit stands abated as a whole and consequently, decree rendered as nullity and therefore, cannot be executed. 6. According to learned counsel appearing for the petitioners, after the death of plaintiff No. 1 only his wife came into his place and not adopted son of plaintiff No. 1, therefore, the suit stands abated and it is mala fide on part of plaintiff-Shyamlata that she did not accept Abhishek as her legal representative. According to petitioners, the executing Court erred in exercising the jurisdiction vested in it and erred in dismissing the objections solely on the ground of delay. According to petitioners, objections regarding omission in impleadment of legal representative (son of plaintiff No. 1) is covered under the provisions of section 47 of Civil Procedure Code. 7. Learned counsel for the petitioners relied upon the judgment of Hon'ble Apex Court in the matter of Gumam Singh (dead) through L.Rs. v. Gurbachan Kaur (dead) by Legal Representative, (2017) 13 SCC 414 , Mt. Chulhiya v. Nanipat Dass, AIR 1973 Patna 399 and the judgment of this Court in the matter of Malti Bai (Smt.) v. Premlal Agarwal, 2000 (1) MPWN 166 . 8. On the other hand, learned counsel for the respondents opposed the prayer made by the petitioners. It is submitted that the executing Court cannot go behind the decree therefore, the decree once settled cannot be reagitated by party.
8. On the other hand, learned counsel for the respondents opposed the prayer made by the petitioners. It is submitted that the executing Court cannot go behind the decree therefore, the decree once settled cannot be reagitated by party. It is submission of the respondents that adoption deed was not registered at the time of moving of application and it was registered subsequent to the application moved in this regard and that too trial Court has considered the said aspect and then passed the order on the application preferred by the legal representative of plaintiff No. 1 Shyamlata as well as on the application moved by Abhishek and the said order has never been put to challenge by the present petitioners before any appellate authority and after dismissal of second appeal, no cause of action survived for petitioners to reagitate the issue. In fact, it is delaying tactics adopted by the petitioners and they are trying to obstruct the proceeding, therefore, this application was moved. In support of his contention, reliance has been placed on the decision of Hon'ble Apex Court in the matter of Topanmal Chhotamal v. Kundomal Gangaram, AIR 1960 SC 388 , Chhabil Das v. Pappu, (2006) 12 SCC 41 , Mahabir Prasad v. Jage Ram, (1971) 1 SCC 265 : AIR 1971 SC 742 and the judgment of this Court in the matter of Saraswati Devi Gupta v. Sudha Rani, 2006 (2) M.P.LJ. 285 and prayed for dismissal of revision. 9. Heard learned counsel for the parties and perused the documents appended with the petition. 10. It is settled in law that scope of civil revision under section 115 of Civil Procedure Code is limited and confined to jurisdictional error, perversity or procedural irregularity or impropriety etc. In the revisional jurisdiction, Court cannot sit as an appellate authority. 11. If on the anvil of said legal position present case is seen then it appears that petitioner has tried to contend on the basis of application preferred under section 47 of Civil Procedure Code before the executing Court. One application was preferred in the year 2016 and another was preferred in the year 2018 bearing almost the same subject-matter.
11. If on the anvil of said legal position present case is seen then it appears that petitioner has tried to contend on the basis of application preferred under section 47 of Civil Procedure Code before the executing Court. One application was preferred in the year 2016 and another was preferred in the year 2018 bearing almost the same subject-matter. The question regarding legal representative of the deceased plaintiff No. 1 Brijmohan Das was decided by the trial Court whereas the application preferred by Shyamlata present respondent No. 1 was allowed and the application of alleged son Abhishek was rejected. After rejection of the application of Abhishek, from the submission it appears that petitioners have never challenged the said rejection nor Abhishek himself objected that this point was never dealt with at the appellate stage at civil regular first appeal or at the stage of second appeal, therefore, the issue in respect of legal representative attained finality. Petitioner had liberty to raise this point in accordance with the provisions of Rule XXII, Rule 5 of Civil Procedure Code before the appropriate Court either at trial Court or at the first appellate Court or at the second Appellate Court and it appears that the same has not been raised by the petitioners or same has been decided against them, therefore, they cannot raise this issue at the execution stage. The Hon'ble Apex Court in the matter of Mahabir Prasad (supra) as well as Chhabil Das (supra) in which it has been held that if one of the parties is already on record then proceedings does not abate and has held that if one of the parties could represent estate of original plaintiff and despite the fact that defendants had an opportunity to raise the said issue at the stage of determination of the question as envisaged under Order XXII, Rule 5 of Civil Procedure Code, the same having been done, such a question cannot be permitted to be raised in the second appeal or before Apex Court for the first time. Here, the petitioners have never raised such issue before the first Appellate Court or at the second appellate stage despite having opportunity to get it decided under Order XXII, Rule 5 of Civil Procedure Code, therefore, petitioners cannot be allowed to raise this issue at this stage.
Here, the petitioners have never raised such issue before the first Appellate Court or at the second appellate stage despite having opportunity to get it decided under Order XXII, Rule 5 of Civil Procedure Code, therefore, petitioners cannot be allowed to raise this issue at this stage. It is also settled in law that executing Court cannot go behind the decree as held by the Hon'ble Apex Court in the matter of Topanmal Chhotamal v. Kundomal Gangaram, AIR 1960 SC 388 . 12. Therefore, in the considered opinion of this Court, the executing Court did not err in passing the impugned order and rightly rejected the application filed by the petitioners under section 47 of Civil Procedure Code twice; one in the year 2016 and another in the year 2018. It appears that twice applications were moved for protraction of proceeding. 13. Resultantly, the civil revision preferred by the petitioners is hereby dismissed and the executing Court is directed to proceed further on an expeditious note so that decree-holder may get fruits of the their decree at the earliest. Petition stands dismissed. Petition dismissed.