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Bhikibai Vs. Mangtibai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Appeal No. 58 of 1963 and Civil Revn. No. 526 of 1962
Judge
Reported inAIR1967MP3
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47, 96 and 115
AppellantBhikibai
RespondentMangtibai and anr.
Appellant AdvocateW.Y. Pande, Adv.
Respondent AdvocateG.M. Chafekar, Adv.
DispositionAppeal dismissed
Cases ReferredBagyalakshmi v. Bappu Aiyar
Excerpt:
- - the decree, it is said, was satisfied by delivery of possession of the property on 18-3-1962 to bhikibai alone. 4. as regards the revision petition ii is clearly untenable. in case the contention of the petitioner be correct that the decree has been properly satisfied it is gaila who would be aggrieved. it is he who could come up and complain that he is being harassed by multiple proceedings against him no order is passed against the petitioner so far directing her to restore possession to the judgment-debtor and thereafter deliver possession to both herself and mangattbai. in case it is the former she evidently is not a party aggrieved and cannot complain......she evidently is not a party aggrieved and cannot complain. the person affected would be judgment-debtor. bhikibai consequently would have no right of appeal in the court below and its decision is proper. on the other hand if it is directed against her and not against the judgment-debtor it is as a result of what took place after the decree. the conflict of interest if any has arisen in the course of execution and the judgment-debtor is no longer interested in such a conflict. there was no conflict of interest in the suit itself it is therefore clear that in such situation there is no right of appeal under section 47 c.p.c. for although the word 'parties' in section 47 does not necessarily mean parties ranged on opposite side and may include parties ranged on the same side provided.....
Judgment:
ORDER

V.R. Newaskar, J.

1. This order will dispose of Civil Misc. Appeal No. 58 of 1968 and Civil Revl-lion No. 526 of 1962. Material facts are as follows.

2. A decree for possession of land was passed jointly in favour of two widows Bhiklbai and Mangatibai in Civil Suit No. 182 of 1969 at the stage of first appeal on 12-2-1962 against the defendant Gaila. Bhiklbai alone thereupon filed an execution application for enforcement of the decree against Galla. The decree, it is said, was satisfied by delivery of possession of the property on 18-3-1962 to Bhikibai alone. Five days before this on 13-3-1962 Mangatibai had applied stating that she had obtained possession from Gaila out of Court and that satisfaction might be entered on the decree. The learned Civil Judge thereupon discovered that the decree had not been executed as per its terms and as ordered by him. He thereupon directed fresh warrant to be issued for delivery of possession to both the widows

3. Bhikibai preferred appeal against that order in the Court of Additional District Judge West Nimar Khargone She also filed this revision petition, it is said, by wav of abundant caution during the pendency of the appeal but more than 45 days after the order sought to be revised When the matter came up for hearing before Sen. J.. the learned Judge thought that if was proper to hear the proceeding along with that of appeal.

4. As regards the revision petition ii is clearly untenable. It is in the first place filed without due diligence as it is filed more than 45 days Even if the petitioner were doubtful about the tenability of the appeal nothing prevented her from resorting to this alternative remedy within the period prescribed by the rules No circumstance has been averred or shown why such an application could not have been filed within 45 days. On this ground alone the petition is liable to be dismissed.

5. In the second place the petitioner can not be a person aggrieved by the order under revision The order appears directed against the judgment-debtor as fresh warrant for possession is directed to be Issued in favour of the petitioner and Mangtibai. In case the contention of the petitioner be correct that the decree has been properly satisfied it is Gaila who would be aggrieved. It is he who could come up and complain that he is being harassed by multiple proceedings against him No order is passed against the petitioner so far directing her to restore possession to the judgment-debtor and thereafter deliver possession to both herself and Mangattbai. Even if it be construed to be an order having the effect of wresting possession from her and conferring joint possession upon both of them it is not suggested that it is contrary to terms of the original decree. If she is already in joint possession along with Mangattbai she need nave no grievance and neither the proceeding taken by Mangatibal nor the order under revision will any way prejudicially affect her.

6. The petition consequently cannot be entertained.

7. As regards the Misc. Appeal No. 58 of 1963 the appeal preferred by Bhiklbai in the Court of Additional District Judge West Nimar, Khargone was dismissed by him holding that the order aforesaid could not have been assailed in appeal by Bhikibai. In this appeal that decision is assailed as being not correct.

8. The point for consideration here is whether the appeal in the Court below was competent. Controversy between the two joint decree-holders in this case is a strange one. The decree was passed jointly in favour of both Mangatibai and Bhikibai against Gaila. Mangatibai says she had already obtained possession direct from Gaila outside the Court and subsequent to that Bhikibai prevents her from entering the field. Bhikibai says she has obtained possession through Court under a warrant on 18-3-1962 and yet the Court has directed fresh warrant of possession. Either the last mentioned order is not directed against her or is so directed. In case it is the former she evidently is not a party aggrieved and cannot complain. The person affected would be judgment-debtor. Bhikibai consequently would have no right of appeal in the Court below and its decision is proper. On the other hand if it is directed against her and not against the judgment-debtor it is as a result of what took place after the decree. The conflict of interest if any has arisen in the course of execution and the judgment-debtor is no longer interested in such a conflict.

There was no conflict of interest in the suit itself It is therefore clear that in such situation there is no right of appeal under Section 47 C.P.C. For although the word 'parties' in Section 47 does not necessarily mean parties ranged on opposite side and may include parties ranged on the same side provided there exists a conflict of Interest between them in the suit itself or even at the stage of execution and the judgment-debtor continues to be interested in such a conflict or dispute. The decision in Radhabai v Bhimrao, AIR 1925 Nag 186 therefore has been rightly held to apply and not the decision in Shriram v. Co-operatives Society No. 56 Chandur AIR 1949 NAG 398. The decision in Bagyalakshmi v. Bappu Aiyar, AIR 1946 Mad 90 also supports (SIC) view.

9. The appeal in the Court below has therefore rightly held to be untenable since it is not suggested by either Bhikibai or Mangatibai that Gaila is in actual possession of the land. He has admittedly parted with it in favour of either of them.

10. The appeal therefore cannot be entertained. It is dismissed with costs.


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