BABURAO Vs. SHIVAPUTRA SINCE DEAD BY L RS

JUDGEMENT

(1.) This second appeal is preferred by the judgment-debtors aggrieved by the Executing Court allowing the execution petition filed for delivery of 1/5th share of the Respondent - Plaintiff and the same being confirmed by the lower Appellate Court.

(2.) The substantial question of law that has been raised for consideration in this appeal reads as under:

(3.) Learned Counsel for the Appellant submitted that the facts are not in dispute insofar as the Respondent - Plaintiff being successful in getting the decree in his favour to an extent of 1/5th share of the Plaintiff in the suit property but the Executing Court committed an error by relying on the Commissioner's report and in the process, the Plaintiff was given more than 1/5th share whereas the judgment-debtors who altogether were entitled to 4/5th share was given a lesser share and this amounts to inequality in the sense that the Plaintiff could not have been give more than 1/5th share in the suit property when the Defendant s-judgment-debtors altogether were entitled to greater share of 4/5th. Elaborating his submission, it is argued that virtually the Plaintiff gets 580 sq. ft. in the suit property whereas Defendant s-judgment-debtor who are entitled to 4/5th share get only 600 sq. ft. altogether and as such the executing Court could not have accepted the Commissioner's report without examining this aspect of the matter and when the judgment-debtors were ready to purchase the share of the Plaintiff which was only 1/5th, the Executing Court could have considered the said prayer and it was not done and similar error was also committed by the lower Appellate Court while confirming the order of the executing Court. Therefore, learned Counsel for the Appellant placing reliance on argued that the Courts below were in error in not taking note of the fact that the suit property was found to be not devisable by the Court Commissioner and under those circumstances, the judgment-debtors ought to have been given a chance of purchasing the Plaintiff 's share as well. Moreover, the Appellant is residing on the said land since 50 years whereas decree-holders have got independent house and this aspect also ought to have been taken note of by the Courts below.