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Bai Fatma Wd/O. Suleman Kasim Simji Vs. Ismail Hafiz Gulam Mohmad Simji and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1969)10GLR450
AppellantBai Fatma Wd/O. Suleman Kasim Simji
Respondentismail Hafiz Gulam Mohmad Simji and anr.
Excerpt:
- .....execute a decree passed in an administration suit by an heir. a final decree, which was the only decree passed, directed that certain shares should be delivered by the petitioner to one nazir ahmad haji ismail simji, who was not a party to the suit on the ground that the shares belonged to that person. the executing court below rejected the contention that the decree was not maintainable and executable.2. form no. 42 in appendix a to the first schedule to the civil procedure code relates to administration in a suit by specific legatee. form no. 43 relates to administration by pecuniary legatee. specific property bequeathed to a specific legatee can be ordered to be given to a specific legatee only in an administration suit filed by a specific legatee as mentioned in the aforesaid form.....
Judgment:

V.B. Raju, J.

1. This revision application arises out of execution proceedings to execute a decree passed in an administration suit by an heir. A final decree, which was the only decree passed, directed that certain shares should be delivered by the petitioner to one Nazir Ahmad Haji Ismail Simji, who was not a party to the suit on the ground that the shares belonged to that person. The executing Court below rejected the contention that the decree was not maintainable and executable.

2. Form No. 42 in Appendix A to the First Schedule to the Civil Procedure Code relates to administration in a suit by specific legatee. Form No. 43 relates to administration by pecuniary legatee. Specific property bequeathed to a specific legatee can be ordered to be given to a specific legatee only in an administration suit filed by a specific legatee as mentioned in the aforesaid form No. 42. The decree passed is, there fore, not one that can be passed under the Civil Procedure Code and therefore cannot be executed.

3. Administration is by the Court, and it is not a matter to be arbitrated upon by an arbitrator. It is open to the administering Court to order preliminary inquiries, but the question whether a person is a specific legatee or not cannot be referred for arbitration. There is no finding of the arbitrator that the property is covered by a specific legacy. The Learned Counsel for the opponent No. 1 could not produce the will although he was given an opportunity to do so. The decree passed is, therefore, one which the Court is not competent to pass.

4. The decree should not have incorporated in its operative part the reasoning of the award and the case of the plaintiff as seen by the arbitrator. Even if the plaint is summarized at the beginning of a decree, the operative part should not contain any part of the plaint. While preparing a decree, the Court should be careful to see that it is drawn up in the forms given In the Civil Procedure Code. The revision application is allowed and the executing Court is ordered not to execute the decree.


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