ZACHARIA Vs. JOLLY CHERIAN

JUDGEMENT

(1.) The writ petition is filed by the respondents 1, 2, 4 and 5 in E.P.No.630/2003 in O.S.No.273/1995 on the file of the Sub Court, Ernakulam. The decree passed in the above suit, which was one for partition, allotting specific shares in the suit property to the sharers is being executed in the aforesaid execution petition. One among the plaintiffs in the suit namely, K.George Zacharia, who was also allotted a specific share, passed away after the passing of the final decree. His widow and daughter moved an application as legal heirs for delivery of the share allotted to him under the decree, and they are the 1st and 2nd respondents in the writ petition. The other two respondents, 3 and 4 in the writ petition, are co-plaintiffs in the suit and they have also been allotted shares under the decree. The claim of the 1st and 2nd respondents, widow and daughter of late K.George Zacharia, for getting delivery of the property allotted to the share of Zacharia in their favour, is being resisted by the 4th petitioner in the writ petition, who was also a party to the suit, contending that late K.George Zacharia had executed a will bequeathing all his assets in her favour, and so much so, she is the sole legatee entitled to the share allotted to him under the suit. Petitioners 1 to 3 in the petition are some of the defendants in the suit, and respondents in the execution petition. They supported the claim of the 4th petitioner and now in the writ petition they have joined with her to impeach the correctness of an order passed by the court below with respect to the will purported to have been executed by K.George Zacharia. An enquiry on the genuineness of the will, which is an unregistered one, was proceeded by the execution court, in which, the 1st petitioner herein, the brother of late K.George Zacharia, was also examined. The learned Sub Judge, after considering the materials placed in that enquiry, passed an order directing for sending over the document for an expert opinion to one Sri.Khan Shahib, who is stated to be a Finger Print and Hand writing expert. The 4th petitioner/5th respondent in the proceedings before the court below, who propounded the will was directed to deposit an amount of Rs. 3,500/- towards expert's fee as demand draft drawn in the name of the expert. Ext.P12 is the copy of that order. Correctness and propriety of Ext.P12 order passed by the learned Sub Judge is impeached by the petitioners invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.

(2.) I heard the counsel on both sides. Having regard to the facts and circumstances presented and the submissions made at the time of hearing with reference to the materials produced in the petition and perusing the impugned order passed by the learned Sub Judge, I requested the learned counsel for the petitioner to enlighten me whether the dispute presented before the execution court as to who is the legal heir of a deceased decree holder, that too, in a decree passed in a suit for partition allotting specific shares to that decree holder in which the other judgment debtor could not have any interest or raise any challenge, is a question falling for determination before the execution court under Section 47 of the CPC. The learned counsel for the petitioners relying on Parbati Debi and others v. Mahadeo Prasad Tibrewalla, 1979 AIR(SC) 1915 and Gopaldas Mohata v. Fulchand, 1997 1 KerLT 40, submitted that if a question as to who is the legal representative of the decree holder is raised before the executing court, that court is bound in law to resolve that dispute under Section 47 of the CPC.

(3.) The question, thus, arising for consideration is whether a dispute regarding the status of a representative of a decree holder in a suit for partition to whom specific share was allotted, is a question arising for determination by the executing court for execution, discharge or satisfaction of the decree. Section 47 of the CPC mandates that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of decree, have to be determined by the court executing the decree and not by a separate suit. Sub section (3) of Section 47 of CPC provides further that if a question arises as to whether any person or is not a representative of a party, such questions shall, for the purposes of this section, be determined by the Court. It is crystal clear that all questions arising as to whether any person is the representative of the party or not, are not covered by Sub section (3) of Section 47 of CPC, but, only if that question, a dispute as to who is the representative of a party, is required to be determined by the court for the purpose of the section relating to the execution, discharge or satisfaction of the decree. Purpose of the section is determination by the executing court questions relating to the execution, discharge or satisfaction of the decree. Disputes between the rival decree holders seeking attachment of the property or setting up claims against each other in the distribution of assets or between joint decree holders inter se are not questions within the section for determination by the execution court unless that affect the judgment debtors. The words of Sub section (3) of Section 47 of CPC makes it clear that the determination is to be for the purposes of that Section. Where the dispute between two persons claiming to be a representative of one party arises on the death of that party, the dispute is not one between the two parties to the suit or between a representative of one party on the one hand and the other party to the suit on the other hand, and hence it would not be a dispute covered under the scope of Section 47 (1) or Section 47 (3) of CPC. Once a final decree in a suit for partition is passed allotting specific shares to each sharer, the other sharers who are shown as respondents in an application moved by a decree holder for getting delivery of the property allotted to him through a court, can no way be interested in a dispute as to who is/are the legal heirs of that decree holder if he had passed away after filing such application. It is purely a dispute between the persons who claim the status of the legal heir of the deceased decree holder and it has nothing to do with the determination of any question relating to the execution, discharge or satisfaction of the decree as between the parties to the suit. A dispute between two persons claiming to be legal representative of the decree holder in which the judgment debtor is not interested would not be a dispute between parties to the suit or with any party to the suit at all and hence it would not be covered under Section 47 of CPC. A dispute about the right of representation as the legal heir of a decree holder in which the judgment debtors are not interested is not relating to a dispute between the parties or that even one of the parties to the suit, but between two set of persons claiming to represent one of the parties namely, the decree holder. Merely because the 4th petitioner was a party to the suit, neither she nor the other parties, including petitioners 1 to 3 cannot claim that the dispute presented over the right of representation by the 4th petitioner on the basis of a will purported to have been executed by late K.George Zacharia resisting the claim of his widow and daughter, is a question arising for determination between the parties relating to the execution, discharge or satisfaction of the decree.