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Mohammad Aleem Vs. Maqsood Alam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 589 of 1984
Judge
Reported inAIR1989Raj43
ActsTransfer of Property Act, 1882 - Sections 52; Code of Civil Procedure (CPC) , 1908 - Sections 47 - Order 22, Rule 4
AppellantMohammad Aleem
RespondentMaqsood Alam and ors.
Appellant Advocate Ahmed Bux, Adv.
Respondent Advocate S.M. Mehta, Adv.
DispositionPetition dismissed
Cases ReferredMst. Smt. Kaur v. Teja Singh
Excerpt:
- industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the.....orders.c. agrawal, j.1. this revision is directed against the order dt. 11th oct. 1984 passed by the additional civil judge no. 1, kota, in execution petition no. 28/83 whereby the additional civil judge rejected the objections submitted by the petitioner and mohammad salim non-petitioner 4 against the petition filed by non-petitioners 1,2 and 3 for execution of a decree passed by this court in favour of khurshid alam (deceased). the non-petitioners 1, 2 and 3 are the heirs and the legal representatives of khurshid alam.2. khurshid alam had filed a suit (civil suit no. 173/62) against his step mother, smt fatima begum, and his brother, mazhar all, for the recovery of possession of a house situated in ladpura, kota city on the basis of a gift made in his favour by his grandfather, madar.....
Judgment:
ORDER

S.C. Agrawal, J.

1. This revision is directed against the order dt. 11th Oct. 1984 passed by the Additional Civil Judge No. 1, Kota, in Execution Petition No. 28/83 whereby the Additional Civil Judge rejected the objections submitted by the petitioner and Mohammad Salim non-petitioner 4 against the petition filed by non-petitioners 1,2 and 3 for execution of a decree passed by this Court in favour of Khurshid Alam (deceased). The non-petitioners 1, 2 and 3 are the heirs and the legal representatives of Khurshid Alam.

2. Khurshid Alam had filed a suit (Civil Suit No. 173/62) against his step mother, Smt Fatima Begum, and his brother, Mazhar All, for the recovery of possession of a house situated in Ladpura, Kota City on the basis of a gift made in his favour by his grandfather, Madar Ali, The said suit was also for taking account of the mesne profits of the house from the date of the suit till the date of the delivery of the possession. In the said suit a decree for eviction was passed by the Civil Judge, Kota, in favour of Khurshid Alam and against Smt. Fatima Begum on 9th July, 1958. The Civil Judge also passed a decree for mesne profits from the date of the suit till the date of delivery of possession @ Rs. 80/- per month. Smt. Fatima Begum-filed an appeal (Civil Appeal No. 163/58) against the said judgment and decree and the same was dismissed by the District Judge, Kota by his judgment dt. 23rd May, 1960. Smt Fatima Begum filed a second appeal (Civil Second Appeal No. 510/60). In the said appeal compromise was arrived at between Smt. Fatima Begum and Khurshid Alam on 8th Oct., 1966 whereby it was agreed that Khurshid Alam was the owner of the house in dispute and he may be declared as such. In the said compromise it was also stated that in a part of the house in dispute Smt. Fatima Begum was residing and other part was in occupation of tenants and it was agreed that during her lifetime Smt. Fatima Begum shall remain in possession of the house in dispute and she would also be entitled to recover rent from tenants and to maintain herself from the said rent and that during the lifetime of Smt. Fatima Begum, Khurshid Alam would not have the right to recover the rent from the tenants or to induct a new tenant in the house and he will also give a notice to all the tenants to pay the rent to Smt. Fatima Begum during her lifetime. In the said compromise it was further agreed that after the death of Smt Fatima Begum Khurshid Alam and his heirs would be entitled to take possession of the house and to recover rent and that Smt. Fatima Begum would not mortgage, sell or gift the property to anybody during her life but in case any tenant vacates the premises she would be entitled to induct a new tenant for her lifetime. It was also agreed that Smt. Fatima Begum would have no connection with ownership of the house and would not claim ownership of the same and would not do anything which may affect the proprietary rights of Khurshid Alam and his heirs. The second 'appeal of Smt. Fatima Begum was disposed of by this Court by order dt. 17th Oct., 1966 in terms of the said compromise and the decree of the lower Court was modified accordingly. After the passing of the said decree by this Court Khurshid Alam died on 19th Sept., 1969, Smt. Fatima Begum expired on 16th Nov., 1971. On 27th May, 1972 non-petitioners 1, 2 and 3 as heirs and legal representatives of decree-holder Khurshid Alam, filed the execution petition giving rise to this revision for the execution of the decree passed by this Court on 17th October, 1966 in Civil Second Appeal No. 510/60. In the said execution petition, the petitioners and non-petitioner 4 were impleaded as parties in the capacity of intermeddlers of the property in dispute which was in possession of the judgment-debtor. The petitioner and non-petitioner 4 are the sons of Smt. Nasibul Jahan Begum, the daughter of Smt. Fatima Begum. In the execution petition non-petitioners 1, 2 and 3 prayed for execution of the decree by delivery of possession of the property from the petitioner and petitioner 4 who were in possession of the same as intermeddlers as well as from the other tenants in occupation of the same. In the said execution petition objections were filed by the petitioner and non-petitioner 4 on 16th December, 1972. The non-petitioners 1,2 and 3 filed a reply to the said objections. The petitioner and non-petitioner 4 as objectors produced oral as well as documentary evidence. After the evidence had been recorded the matter was transferred to the Court of Additional Civil Judge No. 1, Kota under order of the District Judge, Kota dated 25th January, 1982. By order dt 11th Oct., 1984, the Additional Civil Judge rejected the objections of the petitioner and non-petitioner 4. Hence this revision.

3. I have heard Shri Ahmad Bux, the learned counsel for the petitioner and Shri Section M. Mehta, the learned counsel for non-petitioners 1, 2 and 3.

4. At the outset it may be stated that the petitioner and non-petitioner 4, are claiming title over the property in dispute on the basis of an oral gift said to have been made in their favour by Smt. Fatima Begum on 9th January, 1955 as well as on the basis of registered gift deed dt. 29th Dec., 1964. The petitioner and non-petitioner 4 are also claiming title over the said property through their mother, Smt. Nasibul Jehan Begum, who, according to the petitioner, had a share in the said property. In this regard, it may be mentioned that Smt. Nasibu Jahan Begum had filed a suit for partition against her brothers Khurshid Alam and Mazhar Ali, and her mother Smt. Fatima Begum on 25th June, 1941 and in that suit she had claimed partition of certain properties, including the house in dispute, on the ground that the said properties belonged to her father Mohammad Ali. The said suit was contested by Khurshid Alam and Mazhar AH. Smt. Fatima Begum sided with her daughter Smt. Nasibul Jahan Begum. The main ground on which Mazhar Ali and Khurshid Alam resisted the said suit was that Smt. Nasibul Jahan Begum had no interest in the properties as they belonged to Madar AH, who had adopted Khurshid Alam as his son and had made gift of all her properties in favour of Khurshid Alam and further that according to the custom prevalent in the family of the parties females were excluded from inheritance. Both these pleas were upheld by the District Judge, Kota who dismissed the said suit of Smt. Nasibul Jahan Begum and the appeal filed by Smt Nasibul Jahan Begum was dismissed by the High Court of the former State of Kota on 15th April, 1943. Shri Ahmed Bux has urged that the aforesaid facts relating to the filing of the abovementioned suit filed by Smt. Nasibul Jahan Begum cannot be taken into consideration by this Court, because the judgments in the said suit and appeal of Smt. Nasibul Jahan Begum are not part of the record. It is true that the judgments of the District Judge in the suit filed by Smt. Nasibul Jahan Begum against her brothers Khurshid Alam and Mazhar Ali and her mother Smt. Fatima Begum, as well as the judgment of the High Court of Kota, in appeal, are not on the record but the aforesaid facts about the filing of the said suit and its dismissal by the High Court of the former State of Kota are set out in the judgment of the District Judge, Kota on 23rd May, 1960 in Civil Appeal No. 163/81 Smt. Fatima Begum v. Khurshid Alam which is part of the record as Ex. A. 7. It has also been urged by Shri Ahmed Bux that the said judgment of the District Judge cannot be looked into as the same has merged in the order passed by this Court in Civil Second Appeal No. 510/60 on 17th Oct., 1966. In my view the principle of merger invoked by Shri Ahmed Bux would not stand in the way of this Court looking to the judgment of the District Judge, Kota which is part of the record of these execution proceedings with regard to the narration of the facts relating to the filing of the suit by Smt. Nasibul Jahan Begum against the Khurshid Alam. In these circumstances, it must be held that in view of the fact that the claim of Smt. Nasibu Jahan Begum over the property in dispute has been negatived in the suit filed by her against Khurshid Alam, the petitioner and non-petitioner 4 cannot claim any interest in the said property on the basis of their being the sons of Smt. Nasibul Jahan Begum.

5. As regards the other basis of the claim of the petitioner and non-petitioner 4 in the property in dispute, namely, oral gift of 9th Jan., 1955 as well as the registered gift deed dated 29th December, 1964 made by Smt. Fatima Begum in their favour, it may be stated that both the said gifts were made during the pendency of the suit of Khurshid Alam against Smt. Fatima Begum and they are affected by the principle of lis pendens. The law is well settled that the doctrine of lis pendens is also applicable in cases where the pending litigation is ultimately compromised by the parties and a compromise decree is passed in terms of the compromise. In this connection reference may be made to the decision of the Full Bench of the Madras High Court in Ananomolia Chettiar v. Malayandi Appaya Naik, (1906) 1LR 29 Mad 426 wherein it has been laid down that the doctrine of lis pendens as embodied in Section 52 of the T.P. Act, applies to transfers effected during the pendency of a contentious suit or proceeding even when such suit or proceeding is subsequently compromised and a decree passed in pursuance of such compromise provided such compromise is not tainted by fraud or collusion. Similarly in Hiranya Bhusan Mukherjee v. Gouri Dutt Maharaj, AIR 1943 Cal 227 it has been held that the consequence of the doctrine of lis pendens is that the transaction pendente lite shall not be allowed to affect the right under the decree and that as Section 52 of the T.P. Act stands it is immaterial how the decree is obtained in the suit, whether after contest or by consent, and that it is also immaterial whether the decree in the suit is right or wrong and that it is beyond the competence of the Court invited to apply the doctrine of lis pendens to sit in judgment on the previous decree.

6. Shri Ahmed Bux has, however, submitted that the doctrine of lis pendens would not apply in the present case because the compromise decree that has been passed by this Court on 17th October, 1966 gives relief which is not claimed in the plaint of the suit filed by Khurshid Alam since the suit of Khurshid Alam was only for possession and no relief for declaration of title was asked but in the compromise decree, Khurshid Alam has been declared the owner of the property. In support of his aforesaid submission Shri Ahmed Bux has placed reliance on the decision of the Kerala High Court in Marath Veettil Reghavan Nair v. Nediyadath Bhagyalakshmi Alma, AIR 1972 Ker 125 and on the decision of the Calcutta High Court in Trilok Chand Kapur v. Dayaram Gupta, AIR 1967 Cat 541.

7. In M. V. Rule Nair v. Nadiyadath Bhagyalakshmi (supra) a learned Judge of Kerala High Court, while construing the expression 'any decree or order' in Section 52 of the T.P. Act, has observed that the said words must necessarily be limited by context in which they appear in the Section and that the apparent object of the rule of lis pendens is to save a party from being denied the fruits of litigation by reason of a third party setting up rights independently, on the basis of dealings during the pendency of the litigation and that if that be the object there can be no logic or reason in extending the rule to a case where the compromise recognises entirely different rights than that claimed by the parties in the suit. In that case relief was claimed in the suit on the basis of title of the plaintiff but in the compromise that case was given a good bye and the title and possession of defendants Nos. 4, 5 and 6 was accepted and a new right was created in favour of the plaintiff under a lease.

8. In Trilok Chand Kapur v. Dayaram Gupta, (AIR 1967 Cal 541) (supra) a Division Bench of the Calcutta High Court has laid down that though a petition of compromise may deal with matters extraneous to the suit on which the parties may agree, a consent decree must be confined to matters which relate to the suit and must not travel beyond that and that the terms of a compromise, not relating to the suit, cannot be included in operative part of the decree and cannot be enforced by execution.

9. In this connection it may be stated that in the present case, it cannot be said that the compromise decree that was passed by this Court in the second appeal filed by Smt. Fatima Begum covers matters which are extraneous to the suit or that the said decree recognises an entirely different right than that claimed by the plaintiff in the suit. It is true that in the plaint of the suit filed by Khurshid Alam against Smt. Fatima Begum the relief that was claimed was for possession of the house in dispute but the said relief was sought on the ground that the plaintiff Khurshid Alam, was the owner of the property by virtue of the gift that was made in his favour by his grandfather Madar Ali. In the circumstances, it cannot be said that the compromise that has been recorded by order dt. 17th Oct., 1966, wherein it has been declared that Khurshid Alam is the owner of the property covers something which is outside the purview of the suit filed by Khurshid Alam against Smt. Fatima Begum.

10. The decision of the Calcutta High Court in Trilok Chand Kapur v. Daya Ram, (AIR 1967 Cal 541) (supra) relates to the execution of a consent decree which covered matters not relating to the suit. It disapproves the decision of the Full Bench of the Allahabad High Court in(Sahu) Shyam Lal v. M. Shyamlal AIR 1933 AU 649. In (Sahu) ShyamLalv. M. Shyamlal(supra) it has been laid down that in cases where a part of the compromise does not, strictly speaking, relate to the suit and nevertheless the Court decides that it relates to the suit and incorporates it into operative portion and passes a decree in terms of it the decree is not a nullity and not one passed without jurisdiction but would be binding upon the parties to the decree and its validity cannot be questioned in the execution department. I find that most of the High Courts, namely, High Courts of Madras, Andhra Pradesh, Madhya Pradesh, Patna, Pondicherry and Gujarat have taken the same view as the Allahabad High Court and only the Calcutta High Court has taken a different view. A reference in this connection be made to Mulla's Code of Civil Procedure, 13th Eda Vol. II at page 1304 and the decision of the Gujarat High Court in Patel Chaturbhai Nanabhaiv. Patel MohanbhaiNandbhai, AIR 1972 Guj 217.

11. In Teel Chand v. Chimni Ram, 1963 Raj LW 484 a Division Bench of this Court has taken the same view. This court has held that where the court passing the decree on the basis of a compromise happens to pass a decree in accordance with the terms thereof and in doing so not only includes in any such decree the parts which relate to the suit but also those which do not, and no objection thereto is raised by the defendant either before this court or in appeal, then it is not open to the judgment debtor in such a case to object to the execution of such a decree before the execution court that it contains certain terms which do not relate to the suit and should not, therefore, have been included therein. According to the aforesaid judgment of this Court this view is based on the general principle that an executing Court cannot go behind a decree, but must execute it as it stands. In view of the aforesaid decision of this Court in Teel Chand v. Chimni Ram, (1963 Raj LW 484) (supra) it cannot be said that the compromise decree passed by this Court is inexecutable for the reason that it covers a matter which was not subject-matter of the suit filed by Khurshid Alam and the objection raised by Shri Ahmed Bux to the applicability of the principle of lis pendens cannot be accepted.

12. Shri Ahmed Bux has also urged that the compromise decree is not binding on the petitioner and non-petitioner 4 inasmuch as it is vitiated by fraud because at the time of the passing of the said decree the fact of the gift made by Smt. Fatima Begum in favour of the petitioner and non-petitioner 4 was not brought to the notice of the Court. Shri Ahmed Bux has placed reliance on the decision of the Madras High Court in Policherala Veeraraghava Reddi v. Cherla Subba Reddi, AIR 1920 Mad 391 and of the High Court of Travancore Cochin in Venkiteswara Pai VamanaPai v. Kunju Vava Mehomad Ali, AIR 1952 Trav. Co. 309 in support of his submission that the principle of lis pendens would not be applicable so as to affect the rights of the petitioner. In my view, the said decisions on which reliance has been placed by Shri Ahmed Bux have no application to the present case. In Policherala Veeraraghava Reddi v. Cherla Subba Reddi, AIR 1920 Mad 309 (supra) the transfer had taken place during the pendency of the appeal and the transferee had been made a party to the appeal and it was held that it was open to the transferee to object to the recording to the compromise that had been entered into by original parties to the suit. In other words, this was a case in which a compromise decree had not been passed and the transferee was objecting to the passing of the compromise decree. Similarly in Venkiteshwara Pai Vamana Pai v. Kunju Vava Mohamad Ali, (supra) the transferee pendente lite had submitted any application before the Court to get himself impleaded as a party to the suit and had also objected to the recording of the compromise. He was allowed to be impleaded as a party in the suit but he was not permitted to raise objection against the compromise and his objection was not considered A Division Bench of the High Court of Travancore Cochin held that the transferee was entitled to raise an objection to the compromise and reliance was placed on the decision of the Madras High Court in Policherala Veeraragava Reddi v. Cherla Subba Reddi (supra). Thus both these cases stand on a different footing and have no bearing upon the present case where the petitioner and non-petitioner 4 were not parties to the suit filed by Khurshid Alam or in the appeal before this Court and there was no question of their raising any objection to the compromise at the time of the passing of the compromise decree by this Court.

13. Shri Ahmed Bux has, however, urged that it is open to the petitioner to raise objection against compromise decree at the stage of execution that the said compromise decree cannot be executed against the petitioner and non-petitioner 4 because it is vitiated by fraud because at the time of the passing of the compromise decree it was not brought to the notice of the Court that a gift had been made in favour of the petitioner and non-petitioner 4 in respect of this property. In my view, this contention cannot be accepted because the law is well settled that at the stage of execution no objection against the executability of the decree can be raised on the ground of fraud and the only remedy of a person objecting to the execution of a decree on the ground of fraud is to file a suit for setting aside the decree. This is based on the principle that the court executing the decree has no power to go behind the decree and question its validity. The only exception to this principle is that if there was a lack of inherent jurisdiction in the Court which passed the decree then the decree is a nullity and the executing court has to refuse its execution. In this context reference may be made to the decision of the Supreme Court in Hiralal Patni v. Sri Kalinath, AIR 1962 SC 199. There is, however, a clear distinction between the existence of jurisdiction and the manner of exercise of the jurisdiction. An objection which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it alone can be considered in execution proceedings. As pointed out by the Delhi High Court, in Addisons Paints and Chemicals Ltd. v. Sant Ram Parma Nand, AIR 1976 Delhi 137, the question whether the compromise was obtained from the def endants/ judgment-debtor by misre presentation or fraud is not one which relates to the inherent jurisdiction of the Court and the executing court has no jurisdiction to go into the question whether the compromise agreement on which the decree was based was valid or binding on the judgment-debtors for that would be defeating the decree on the allegation that it was obtained by fraud. Fraud or misrepresentation renders a contract voidable at the option of the party whose consent was so obtained and it does not render the contract void. The contract continues to be valid till the aggrieved party challenges its validity. The only remedy of a person who wishes to challenge a compromise decree on the ground of fraud is to file a suit for setting aside the said decree and such an objection cannot be entertained during the course of execution proceedings.

14. Another objection that has been raised by Shri Ahmed Bux to the execution proceedings is that the execution petitioner has been filed by non-petitioners 1, 2 and 3 claiming to be the heirs and legal representative of the deceased decree-holder, Khurshid Alam, and that for the purpose of filing the execution petition they should have first obtained a succession certificate under the Indian Sucession Act, 1925. In support of his aforesaid submission Shri Ahmed Bux has placed reliance on the decision of this Court in Ganeshmal v. Smt. Anand Kanwar, 1968 Raj LW 519 : (AIR 1968 Raj 273). In Ganeshmal v. Anand Kanwar (supra), this Court has held that in view of Clause (b) of Sub-section (1) of Section 214 of the Succession Act, no Court shall proceed to execute a decree or order for payment of debt against a debtor in case the decree-holder expires, unless the person claiming to be entitled to execute the decree, in place of the deceased decree-holder, obtains a succession certificate and 1 produces it in the Court. In my view, the said decision is not applicable to the present case because in the execution petition 'non-petitioners 1, 2 and 3are seeking the execution of the decree by delivery of possession of the house in dispute to them from petitioner and non-petitioner 4 and the tenants. It is not a petition for execution of a decree for payment of a debt and the bar contained in Section 214 is not attracted to the present case. Shri Ahmed Bux has submitted that considerable sum of money is lying with the receiver appointed by the Court and since the said money constitutes a debt the provisions of Section 214 would be attracted. I find that the receiver was appointed by the executing court namely, the Civil Judge, Kota, by his order dt. 13th April, 1973, during the pendency of the execution proceedings. The fact that the amount collected by the receiver would be payable to non-petitioners 1, 2 and 3 in the these execution proceedings, would not mean that the execution proceedings are for execution of a decree for payment of a debt to which Section 214 of the Succession Act are attracted. The objection raised by Shri Ahmed Bux is, therefore, without substance and is rejected.

15. Another contention that has been urged by Shri Ahmed Bux is that there has been non-compliance of the provisions of Section 50, C.P.C. in Sub-section (1) of Section 50 it has been laid down that where a judgment-debtor dies before the decree is fully satisfied the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. The submission of Shri Ahmed Bux is that the aforesaid provision of Sub-section (1) of Section 50 is mandatory in nature and since no such application was submitted by non-petitioners 1, 2 and 3 before the Court under Sub-section (1) of Section 50, C.P.C. the execution petition was liable to be dismissed. In support of his aforesaid submission Shri Ahmed Bux has placed reliance on the decision of the Full Bench of the Madras High Court in Kanchamalai Pathar v. Shahaji Rajah Sahib, AIR 1936 Mad 205 and the decision of the Division Bench of this Court in Mubarak Begum v. Sushil Kumar, AIR 1957 Raj 154.

16. In Kanchanmalai Pathar v. Sahaji Rajah Sahib (supra) the judgment-debtor had died during the pendency of the execution proceedings and it has been laid down that in a case where the judgment-debtor has died and the decree-holder wants that the decree be executed against the legal representatives of the deceased judgment-debtor, the decree-holder must apply to the Court to execute the decree against the legal representative and notice must issue to the legal representative as required by Order 21, Rule 22, C.P.C. In that case it was held that where there has been no application under Section 50 consequently no issue of a notice under Order 21, Rule 22(1), the foundation of the Courts' jurisdiction to execute a decree against the legal representative is entirely wanting and sale held without jurisdiction would be void.

17. In Mubarak Begum v. Sushil Kumar, (AIR 1957 Raj 154) (supra) a Division Bench of this Court has followed the said decision of the Madras High Court. In that case also the judgment-debtor had died during the pendency of the execution proceedings and her legal representative was not brought on the record before the confirmation of the sale.

18. The position in the present case is, however, different. Here Smt. Fatima Begum had died prior to the filing of the execution petition and in the execution petition the petitioner and non-petitioner 4 were impleaded as opposite parties and notices were issued to them whereby they were informed about the execution proceedings and they were told that they could file an objection, if any, to the execution of the decree. Shri Ahmed Bux has, however, urged that this is not sufficient and that the non-petitioners 1, 2 and 3 should have moved the Court under Order 23, Rule 4, C.P.C. for bringing on record the legal representatives of Smt. Fatima Begum. In my opinion, the said contention cannot be accepted. Order 22, Rule 4, C.P.C. is applicable only to those cases where the judgment-debtor dies during the pendency of the proceedings and in such a case an application is to be moved before the Court under Order 22, Rule 4, C.P.C. for bringing on record the legal representatives of the deceased party. In cases where a party has died before the institution of the proceedings, the question of substituting the legal representatives does not arise and the case does not fall under Order 22, Rule 4, C.P.C. Since the judgment-debtor, Smt. Fatima Begum, had died before the filing of the execution petition, there was no question of moving an application under Order 22, Rule 4, C.P.C. in the execution petition filed by non-petitioners 1, 2 and 3. Moreover the name of the petitioner and non-petitioner 4 were mentioned as opposite parties in the execution petition and the notices were issued to them and, therefore, I am of the opinion that there has been due compliance of provisions of Section 50, C.P.C.and the objection raised by Shri Ahmed Bux, on the basis of the provisions of Section 50, C.P.C. must be rejected.

19. Another objection that has been raised by Shri Ahmed Bux is that the petitioner and non-petitioner 4 have been wrongly described as intermedlers and that they could not be impleaded as legal representatives of Smt. Fatima Begum in these legal proceedings because the petitioner and non-petitioner 4 are claiming to be in occupation of the disputed house on their own right. In support of his aforesaid submission Shri Ahmed Bux has placed reliance on the decisions of the Calcutta High Court is Satya Ranjan Roy Choudhary v. Sarat Chandra Biswar, AIR 1926 Cal 825 and Nagendra Nath Roy v. Haran Chandra Adhikary, AIR 1933 Cal 865 as well as on the decision of the Madras High Court in Chockalingam Chettiar v. Karuppan Chettier, AIR 1948 Mad 386 and on the , decision of the High Court of Trivancore Cochin in Chacko Pyli v. type Varghese, AIR 1956 Trav. Co. 147 (FB). In my view, there is no merit in the aforesiad contention. During her lifetime Smt. Fatima Begum was in possession of the property in dispute and the possession of the petitioner and non-petitioner 4 was only permissible in nature through Smt. Fatima Begum. After the death of Smt. Fatima Begum, the petitioner and non-petitioner 4 started dealing with the said property. Since they were claiming their title. over the property through Smt. Fatima Begum, they must be held to be representatives of Smt. Fatima Begum for the purpose of Section 47, C.P.C. in the execution proceedings initialed against them. In this regard reference may be mode to (he decision of the Full Bench of the Lahore High Court in Mst. Smt. Kaur v. Teja Singh, AIR 1946 Lah 142, wherein it has been laid down that the word 'representative', as used in Section 47, C.P.C. has a much wider meaning than the words 'Legal representative' and includes not only a legal representative but any representative in interest, i.e. any transferee of the interest of a party, whether by assignment, succession or otherwise, who sofar as such interest is concerned is bound by the decree. In that case it has also been held that a transferee from a defendant pendente lite being the representative in interest of such defendant and being bound by the decree eventually passed in the suit, by reason of the operation of the rule of lis pendens, is a representative of the defendant within Section 47 and the decree-holder can execute the decree against him in the same manner and to the same extent as he could execute it against the original defendant. The decisions on which reliance has been placed by Shri Ahmed Bux have no bearing on this question and they do not lend assistance to him.

20. Shri Ahmed Bux has also contended that the petitioner and non-petitioner 4 have acquired title over the property in dispute by adverse possession and that their possession over the suit property is hostile since 1941 when the suit filed by Smt. Nasibul Jahan was dismissed. In my view there is no substance in the aforesaid contention because during her lifetime Smt. Fatima Begum was in possession of the property in dispute and the petitioner and non-petitioner 4 were only living in the said property along with Smt. Fatima Begum and they did not claim any independent right of possession and therefore, i they could not acquire any title by adverse possession on the basis of the said possession Smt. Fatima Begum died in Nov., 1971 and shortly thereafter the present executor petition was filed by non-petitioners 1, 2 and 3 on 27th May, 1972 and therefore, there car be no question of the petitioner and non-petitioner 4 acquiring any right, over the property in dispute by -virtue of adversepossession.

21. Shri Ahmad Bux has lastly urged thatthe judgment of the Civil Judge rejecting the objection of petitioner and non-petitioner 4 is no judgment in the eye of law because the .Additional Civil Judge has not consideredthe evidence on record. In my view thiscontention is also without substance becausefrom the perusal of the judgment of the Addl.Civil Judge, I find that he has first referred tothe pleading thereafter he has referred to theevidence produced by the parties and then,he has dealt with the various objections raisedby the petitioner and non-petitioner 4 and has given his reasons for rejecting the same.It cannot, therefore, be said that the judgmentof the Addl. Civil Judge is not a judgment inthe eye of law.

22. No other contention was urged byShri Ahmed Bux.

23. In the result the revision petition fails and is hereby dismissed. The non-petitioners 1, 2 and 3 will be entitled to their costs.


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