Keshari Pradhan Vs Narayana Pradhan

petitioners for filing of the same is that, the suit vide T.S. No.9 of 1991 was filed by the plaintiffs thereof (Opp. Party Nos.1 to 10 in this revision)

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against the petitioners in this revision along with others praying for partition of the suit properties.

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3. The Trial Court, decreed that suit vide T.S. No.9 of 1991 preliminarily for partition on contest as per its Judgment and Decree dated 06.01.1994 indicating the shares of the parties in the suit properties specifically.

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4 . That preliminary decree was made final. After final decree, the plaintiffs filed Execution Application No.18 of 2003 to execute the final decree passed in that suit vide T.S. No.9 of 1991 in their favour.

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5. In that Execution Application No.18/2003, the defendant No.1 & 2 of the suit vide T.S. No.9/1991 filed CMA No.1 of 2006 under Section 47 of the CPC, 1908 making a prayer to drop that Execution Application No.18 of 2003 on the ground that, the decree passed in T.S. No.9 of 1991 is without jurisdiction being barred under Section 39 of the O.E.A. Act, 1951. According to them (defendant Nos.1 & 2) as the decree passed in T.S. No.9 of 1991 is without having jurisdiction, the said decree in T.S. No.9 of 1991 is a nullity. For which, that decree passed in T.S. No.9 of 1991 is not executable under law. Therefore, the Execution Proceeding arising out of the decree of the suit is liable to be dropped.

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To which, the Opp. Party Nos.1 to 10 (plaintiffs in the suit vide T.S. No.9 of 1991) objected in their objection stating that, the petitioners

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in CMA No.1 of 2006 under Section 47 of the CPC being the defendant Nos.1 and 2 had filed their joint written statement in the suit vide T.S. No.9 of 1991, and during trial of the suit, the defendant No.1 had not contested, but whereas the defendant No.2 (petitioner No.2 in CMA No.1/2006) had contested taking their stands that, the suit of the plaintiffs vide T.S. No.9 of 1991 is barred under Section 39 of the O.E.A. Act.

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After taking the above ground raised by the defendant Nos.1 and 2 in their written statement about the non-maintainability of the suit as per Section 39 of the OEA Act, an issue was framed on that point along with other issues and in the Judgment of the said suit, that issue along with other issues were answered against the defendant Nos.1 and 2.

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After the preliminary and final decrees passed in that T.S. No.9 of 1991, the said decrees in that suit have become final and binding upon the parties including the defendant Nos.1 and 2 due to non-challenge to the same by them (defendant Nos.1 and 2) before the appropriate higher forums.

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For which, the CMA No.01 of 2006 under Section 47 of the CPC filed by the defendant Nos.1 and 2 is liable to be dismissed.

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6. After hearing from both the sides, the learned Civil Judge, (Sr. Div.), Padampur dismissed to the CMA No.1 of 2006 under Section 47 of

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the CPC, 1908 of the petitioners (defendant Nos.1 and 2) on dated 24.02.2010 assigning the reasons that,

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“ the Court cannot go behind the decree, as in the Judgment and Decree passed in the suit vide T.S. No.9 of 1991, the ground raised by the petitioners (defendant Nos.1 and 2) in CMA No.1 of 2006 was considered and replied in negative clarifying that, the settlement of the suit land under Section 8(1) of the OEA Act, 1951 even in the name of one member of the joint family, the same was for the benefit of all the members of the joint family including the plaintiffs and on the basis of the said observations, the preliminary decree thereof was passed and thereafter, final decree was also passed in that suit in presence of the parties including defendant Nos.1 and 2.

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So, the above ground raised by the petitioners (defendant Nos.1 and 2 in the CMA) that, the Judgment and Decree passed in T.S. No.9 of 1991 is a nullity being barred under Section 39 of the O.E.A. Act cannot be sustainable under law. For which, the decree passed in T.S. No.9 of 1991 is not a nullity. Therefore, the CMA No.1/2006 under Section 47 of the CPC, 1908 filed by the petitioners (defendant Nos.1 and 2) was dismissed by the Trial Court on contest. ”

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7. On being aggrieved with the said final order of dismissal of the

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CMA No.1 of 2006 under Section 47 of the CPC, 1908 of the petitioners,

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the petitioners challenged the same by filing this Revision being the petitioners against the Opp. Parties thereof.

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8 . I have already heard from the learned counsel for the petitioners

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and the learned counsel for the Opp. Party Nos.1 and 2, as other Opp. Parties did not participate in the hearing of this Revision.

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9 . During the course of hearing, in order to assail the

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impugned order, the learned counsel for the petitioners (defendant

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Nos.1 and 2) relied upon the following decisions:

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(i) Krushna Chandra Muduli Vs. Brundaban Chandra Deb & Others: Civil Revision No.737 of 1991 decided on 15.10.1995;

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(ii) Radhi Dei & Others Vs. Lalit Bihari Mohanty:Civil Revision No.568 of 1989 decided on 03.08.1990;

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(iii) Ganesh Pasupalak & Others Vs. Lakmeswari Devi & Others:First Appeal No.250 of 1984 decided on 23.11.2007

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(iv) Savitri Dei & Others Vs. Sarat Chandra Rout & Others:(1996) 3 SCC 301

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(v) Sushil Kumar Mehta Vs. Gobinda Ram Bohra (dead) through his LRs:Civil Appeal No.4599 of 1989 decided on 10.11.1989.

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10 . As per the rival submissions of the learned counsels of both the

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sides, the crux of this Revision is,

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whether CMA No.1/2006 under Section 47 of the CPC filed by the petitioners (defendant Nos.1 and 2 in the suit vide T.S. No.9 of 1991) against the plaintiffs in that suit to drop the Execution Application No.18/2003 on the ground of nullity of the Judgment and Decree passed in the T.S. No.9 of 1991 alleging that, the Judgment and Decree is hit and barred under Section 39 of the OEA Act, 1951 was maintainable under law and whether the

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impugned order of rejection to the said CMA No.1/2006 passed by the learned Civil Judge, (Sr. Division), Padampur is sustainable under law?

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11 . It appears from the Judgment and Decree for partition of the suit properties in T.S. No.9 of 1991 that, the ground, which has been raised by the petitioners (defendant Nos.1 and 2 in the suit vide T.S. No.9 of 1991) to drop the execution application No.18/2003, the said particular ground was also raised by them petitioners (defendant Nos.1 and 2) in the written statement filed by them in the suit vide T.S. No.9 of 1991 and after proper adjudication of that ground in an issue, the Trial Court answered the same discarding that ground of the defendant Nos.1 and 2 in the Judgment and Decree of the suit vide T.S. No.9 of 1991 observing specifically that, the suit of the plaintiffs is maintainable under law for dividing the Schedule “A” properties in 3 equal shares among 3 branches i.e. Dambaru, Indramani, Kandarapa of the parties.

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After passing of the preliminary decree and final decree in T.S. No.9 of 1991, the plaintiffs (Opp. Parties in this revision) filed Execution Application No.18 of 2003, to execute the final decree of that T.S. No.9 of 1991, the petitioners filed CMA No.1/2006 making a prayer to drop the Execution Application on the above ground, which ground was rejected by the Trial Court in its Judgment and Decree after appreciating

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the pleadings and evidence of the parties to the suit vide T.S. No.9 of 1991 including the pleadings and evidence of the defendant Nos.1 and 2 (petitioners in this revision).

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It is the settled propositions of law that, objection once raised by the party(s) to a suit, if the same is discarded in its Judgment and Decree, it is not open to the said party to raise that point/ground again, during the course of execution of that decree through an Execution Proceeding like the objection raised by the petitioners in CMA No.1/2006 under Section 47 of the CPC, 1908.

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12. Here in this matter at hand, when after passing of the preliminary

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and final decree in T.S. No.9 of 1991, the said decrees were not challenged by the defendant Nos.1 and 2 (petitioners in this revision as well as petitioners in CMA No.1/2006) by preferring appeals under Sections 96 & 97 of the CPC, 1908, then, they are precluded (estopped) as per law to agitate/raise such ground in the Execution Application No.18 of 2003 filed by the plaintiffs through CMA No.1/2006.

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On this aspect the propositions of law has already been clarified in the ratio of the following decisions:

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(I) In a case between Rosna Begam Vs. Smt. Jesmin Begam) reported in 2017 (Suppl.) Civ.C.C. 45 Tripura that, Exectuion— Objection once raised at trial and decided by Trial Court, it is not open to parties to raise it again at the

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stage of execution by filing application under Section 47 of the CPC, 1908.

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(II) In a case between M/s. Chagan Raj Goutam Kumar Vs. K. Veeranna & Another reported in 2021 (3) Civ.C.C. 594 (Karnataka) that, erroneous finding cannot be disturbed in execution proceedings and such recourse is not available under Section 47 of the CPC, 1908.

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(III) In a case between Suraj Mal (since deceased) Through his LRs Vs. Jagbir Singh & Others reported in 2021 (1) Civil Court Cases 236 (P & H) that, in a partition suit, where petitioners/legal heirs of one of JDs allowed preliminary decree as also final decree passed to become final, specifically in presence of their counsel, with a written statement also filed by them in reply to application seeking a final decree of partition, execution Court could not have gone beyond decrees passed by Civil Court. Objections raised under Section 47 of the CPC rightly dismissed.

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(IV) In a case between State of U.P. Vs. R.B.L. Gupta & Others reported in 2017 (3) Civil Court Cases 17 (Allh.) that, objections raised under Section 47 of the CPC taking the plea that, decree passed is without jurisdiction, a view taken by Court may not be correct but that does not render the decree to be without jurisdiction.

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(V) In a case between Manas Goswami Vs. Girdhari Lal Jaiswal

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& Another) reported in 2013 (3) Civil Court Cases 182 (Allh.) that, objections raised decided in the Judgment and Decree against the applicant, the said question cannot be re-agitated in Execution.

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(VI) In a case between Shankarlal Chhanulal Nagpure Vs. Pramodkumar Prahladrai Agarwal & Another reported in 2018 (4) Mah. LJ 672 that, when JD failed to lead any evidence before Trial Court when proceedings were undertaken in suit filed by the plaintiffs, he cannot be permitted to raise objection on merits of decree before executing Court, as said objections are nothing but attempt to go behind decree. Moreover, JD unable to make out case for declaring that decree itself is inexecutable. Objection under Section 47 CPC rightly rejected.

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13. So, by applying the principles of law enunciated in the ratio of the decisions referred to supra, to this matter at hand on law and facts, it is held that, the CMA No.1/2006 under Section 47 of the CPC, 1908 filed by the petitioners (defendant Nos.1 and 2 in the suit) was not maintainable under law. For which, the dismissal to the same by the learned Civil Judge, (Sr. Division), Padampur through the impugned order vide Annexure-4 is not erroneous in any manner.

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Therefore, the question of interfering with the same through this

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revision filed by the petitioners does not arise. For which, the decisions relied upon by the learned counsel for the petitioners indicated in Para No.9 of this Judgment are not applicable on law and facts to this matter at hand.

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14 . As such, there is no merit in this revision filed by the petitioners. The same must fail.

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15 . In result, the revision filed by the petitioners is dismissed on contest.

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16 . Therefore, the revision filed by the petitioners is disposed of finally.

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17. The Executing Court is directed to proceed with the Execution Application No.18/2003 as expeditiously as possible and to dispose of the

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