Dismissed

Rajendra Singh Alias Rajendra Mahto and Anr. v. Bhajani Singh And Ors.

Jharkhand HC8 Sept 2015WPC/2359/2015

Case brief

AI extract

What is this about?

This court dismissed a writ petition challenging an order dismissing an application under Section 47 CPC. The petitioners contested an execution proceeding on merits regarding property allocation but failed to prefer an appeal against the final decree or the order accepting the commissioner's report. The court held the Section 47 application was not maintainable.

What did the court decide?

The writ petition was dismissed.

Rajendra Singh Alias Rajendra Mahto and Anr. Vs Bhajani… — Property and Title | Jharkhand HC (2015)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (C) No. 2359 of 2015

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RAJENDRA SINGH ALIAS RAJENDRA MAHTO SON OF LATE RAM PRASAD MAHTO RESIDENT OF VILL NAWADIH PO DANGWAR PS HUSSAINABAD DIST PALAMAU

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SUDAMA ALIAS SUDAMA MAHTO ALIAS SIDHESHWAR SINGH S/O LATE RAJA MAHTO RESIDENT OF VILL BALIBIGHA PO DANGWAR PS HUSSAINABAD DIST PALAMAU JHARKHAND …... PETITIONERS

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VERSUS

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BHAJANI SINGH S/O LATE BABU KESHWAR SINGH R/O VILL AND PO RAJBARIA PS NABI NAGAR DIST AURANGABAD BIHAR

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SANJAY KUMAR SINGH

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AJIT KUMAR SINGH

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2-3 S/O BABU BHAJANI SINGH R/O VILL AND PO RAJBARIA PS NABI NAGAR DIST AURANGABAD BIHAR

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SHRIMATI RAJMATI DEVI WIDOW OF CHAUDHARY HARHANGI SINGH R/O VILL NAWADIH PO DANGWAR PS HUSSAINABAD DIST PALAMAU JHARKHAND

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SARJU SINGH

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RAM SINGHASAN SINGH

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5-6 S/O LATE BACHHU SINGH R/O VILL DANGWAR NAWADIH PO DANGWAR PS HUSSAINABAD DIST PALAMAU JHARKHAND

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RAM LAKHAN MAHTO S/O LATE RAMJATAN MAHTO

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SAHODRI KUER WIDOW OF CHANDRIKA MAHTO

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BADRI MAHTO

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BANARSI MAHTO

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KISHUNDEO MAHTO

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MADHURI MAHTO 9-12 S/O LATE CHANDRIKA MAHTO

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URMILA KUMARI

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JHULMILA KUMARI 13-14 D/O CHANDRIKA MAHTO

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RAMKALI KUER WIDOW OF RAM PRASAD MAHTO 16. SURENDRA MAHTO SON OF RAM PRASAD MAHTO 17. JITENDRA MAHTO SON OF RAM PRASAD MAHTO 18. ANUGRAH NARAYAN MAHTO SON OF RAM PRASAD MAHTO

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KHYALI MAHTO S/O LATE RATAN MAHTO

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RAMKALI DEVI WIFE OF RAM SUNDAR MAHTO

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JHALIA DEVI WIFE OF RAMKEWAL MAHTO

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7-21 R/O RO VILL NAWADIH PO DANGWAR PS

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HUSSAINABAD DIST PALAMAU

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JAGESHRI DEVI W/O BHAGWAT MAHTO R/O VILL KATAIYA PO KATAIYA PS HUSSAINABAD DIST PALAMAU JHARKHAND

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..... RESPONDENTS

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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

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FOR THE PETITIONERS : MR. OM PRAKASH TIWARI, ADV

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6/ Dated: 08^th September, 2015 Per SHREE CHANDRASHEKHAR, J.

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Aggrieved by order dated 19.02.2015 in Execution Case No.14 of 2013, the present writ petition has been filed.

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2. The brief facts of the case are that, in the partition suit being, P.S. No.75 of 1982, the petitioners were defendants. The suit was decreed on 22.12.1984 and a preliminary decree was prepared on 05.01.1985. The defendants preferred T.A. No.06 of 2003 challenging the preliminary decree dated 05.01.1985. Vide judgment and order dated 23.12.2003, T.A. No.06 of 2003 was allowed and the suit was remanded back for deciding issue nos.II and VI, afresh. After remand, the suit was decreed on 30.04.2007 and a preliminary decree was prepared on 16.05.2007. The defendants instituted P.A. No.29 of 2007. In the meantime, final decree was prepared on 19.10.2012 and the plaintiffs instituted Execution Case No.14 of 2013. In the execution case, Advocate Commissioner was appointed for demarcation of the suit property and report dated 14.07.2014 was submitted. The petitioners/judgment debtors filed objection to the report on

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04.08.2014 however, the said objection was rejected and the Pleader Commissioner's report was accepted on 24.11.2014. Thereafter, the petitioners filed application under Section 47 CPC which has been dismissed vide order dated 19.02.2015.

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3. The learned counsel for the petitioners submits that the Advocate Commissioner's report was accepted without hearing the petitioners. The petitioners are residing over a part of the suit property by constructing the house since last several years however, the said portion has been wrongly allocated to the plaintiffs. Moreover, while P.A. No.29 of 2007 is pending, the executing court should not have ordered execution of the final decree.

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4. From the facts disclosed in the writ petition, it is apparent that against final decree dated 19.10.2012, the petitioners have not preferred appeal. Execution Case No.14 of 2013 was instituted for execution of final decree dated 19.10.2012. The contention that part of suit property over which the petitioners have constructed house, has wrongly been allocated to the plaintiffs cannot be agitated by the petitioners in the execution proceeding. The said plea has been considered and rejected by the trial court and accordingly, preliminary decree as well as final decree have been prepared. The contention that in application under Section 47 CPC, all issues arising between the parties can be decided, is liable to be rejected. As noticed above, objection raised by the petitioners to the Advocate Commissioner's report has been

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rejected and the report has been accepted by the court on 24.11.2014. The said order has not been challenged by the petitioners. Considering the fact that neither final decree dated 19.10.2012 nor order dated 24.11.2014 whereby, the Advocate Commissioner's report has been accepted, have been challenged by the petitioners, application under Section 47 CPC was liable to be dismissed.

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5. I find no infirmity in the order dated 19.02.2015 and accordingly, the writ petition is dismissed.

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(Shree Chandrashekhar, J.)

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R.K.

Rajendra Singh Alias Rajendra Mahto and Anr. v. Bhajani Singh And Ors.

Case brief

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Rajendra Singh Alias Rajendra Mahto and Anr. v. Bhajani Singh And Ors.

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