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Shiv Prasad and anr. Vs. Smt. Tali Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberEx. Second Appeal No. 4 of 1969
Judge
Reported inAIR1973Raj159; 1972()WLN528
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantShiv Prasad and anr.
RespondentSmt. Tali Devi and ors.
Advocates: G.M. Lodha and; D.N. Thanvi, Advs.
DispositionAppeal allowed
Cases ReferredVirendra Kishore Srivastava v. Keshrinandan Prasad
Excerpt:
civil procedure code - section 47--question relating to saleable interest in property attached--held, executing court competent to decide.;the question about the salability of the judgment-debtors' in a property attached in the execution proceedings, is a question within the four corners of section 47 cpc and, therefore, the executing court would be competent to decide this question treating it as an objection raised by the judgment-debtor under section 47 civil procedure code. - .....the judgment of the district judge, jaipur district. jaipur whereby the order passed toy the civil judge, jaipur district. jaipur dated 4-12-1967 was upheld, raises an important question whether the objection filed by the judgment-debtor that the property attached in the execution of the decree cannot be sold as the judgment-debtor had no saleable interest therein is covered by the provisions of section 47, civil p. c. or not. 2. it appears that the respondents-decree-holders obtained a decree against the appellants and in execution thereof two shops were attached and a proclamation of sale was issued by the executing court. the judgment-debtors raised a plea that they were not the owners of these shops and that their lease-hold rights in these two shops cannot be sold in the.....
Judgment:

V.P. Tyagi, J.

1. This execution second appeal, filed by the judgment-debtors against the judgment of the District Judge, Jaipur District. Jaipur whereby the order passed toy the Civil Judge, Jaipur District. Jaipur dated 4-12-1967 was upheld, raises an important question whether the objection filed by the judgment-debtor that the property attached in the execution of the decree cannot be sold as the judgment-debtor had no saleable interest therein is covered by the provisions of Section 47, Civil P. C. or not.

2. It appears that the respondents-decree-holders obtained a decree against the appellants and in execution thereof two shops were attached and a proclamation of sale was issued by the Executing Court. The judgment-debtors raised a plea that they were not the owners of these shops and that their lease-hold rights in these two shops cannot be sold in the execution of the decree against them. The learned Civil Judge dismissed the objections of the Judgment-debtors by writing a four line judgment. On appeal the learned District Judge raised an important question of law whether the objection raised by the judgment-debtors can be entertained by the executing Court under Section 47, Civil P. C. After hearing the parties, learned District Judge held that objection cannot, be filed by the judgment-debtors under Section 47 Civil P. C. as it does not relate to the execution, discharge or satisfaction of the decree. He, therefore, rejected the appeal of the judgment-debtors. It is in these circumstances that the judgment-debtors have filed this second appeal before this Court.

3. Section 47, Civil P. C. lays down that all questions arising out between the parties to the suit in which the decree was passed and relating to the execution discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The contentions of the learned counsel for the appellants is that the objection raised by the judgment-debtors that their interest in the attached property are not saleable related to the execution of the decree and, therefore, the executing Courtshould have entertained and decided their objection. In support of this view learned counsel placed reliance on Virendra Kishore Shrivastava v. Kesharinandan Prasad. AIR 1962 Pat 410 and Kusum Kumari v. Firm Harnath Rai Birijraj, AIR 1941 Pat 240.

4. In Kusum Kumari v. Harnath Rai Birijraj an objection was raised by the judgment-debtor about the sale of his land on the ground that it was a Government shatwali tenure and therefore not saleable. Learned Judges after hearing the parties held that the land held by the judgment-debtor, was not liable to be attached and sold as the judgment-debtor had no power of disposal and such an objection could certainly be raised under Section 47, Civil Procedure Code.

5. In a subsequent case of Virendra Kishore Srivastava v. Keshrinandan Prasad the question for the determination for the learned Judge was whether the petitioner judgment-debtor had any saleable interest in the property on the date of vesting and whether such a question could be entertained under Section 47, Civil P. C. or it was a question which falls within the ambit of Order 1, Rule 89 or 90 of Civil P. C. The learned Judge was of the opinion that this question falls under Section 47, Civil P. C. and there-fore, appeal would lie against the order of the Court deciding objections and the revision was not maintainable and it was on that ground that the revision filed by the aggrieved party was dismissed.

6. I am in respectful agreement with the view taken by Patna Court that the question about the salability of the judgment-debtors' interest in a property attached in the execution proceedings, is a question which falls within the four corners of Section 47, Civil P.C. and, therefore, the Executing Court would be competent to decide this question treating it as an objection raised by the judgment-debtor under Section 47. Civil P.C.

7. For the reasons mentionedabove, the appeal is allowed. The orders passed by the Civil Judge dated 4-12-1967 and of the learned District Judge dated 25-10-1968 are set aside and the case is remanded to the Executing Court to decide the objection of the judgment-debtors whether they are mere lessee and as such their interest cannot be sold in the execution of the said decree.

8. Since nobody has appeared on behalf of the decree-holder therefore. I pass no order as to costs.


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