BAI PREMI Vs. THAKORBHAI

JUDGEMENT

(1.) This appeal is directed against the order of the Joint Civil Judge, Senior Division, Surat ordering execution proceedings to proceed and appointing Mr. Sunil C. Bhukhanwala as the Commissioner to divide the house as per the terms of the decree.

(2.) The facts giving rise to this appeal briefly stated are as under:-Special civil suit No. 268 of 1947 was field in the Court of the learned Civil Judge, Junior Division, Surat by the minor Thakorbhai alias Ishwarbhai Ichhubhai and four other minors against Bai Devi and others wherein the following reliefs were prayed for by the plaintiff :--

(3.) Mr. N. C. Shah, learned Advocate for the appellants has taken the same defences before me. He urged that (I) the compromise decree in question relates to some properties which were not the subject-matter of the suit and hence, the decree passed by the Court has gone beyond the provisions of Order 23, Rule 3, C.P. Code. The decree, therefore, is invalid and cannot be executed. (2) The decree in effect is a decree for partition of the suit property and as some of the immovable properties mentioned in the compromise decree were not the subject- matter of the suit, the decree was required to be compulsorily registered and as the same was not registered, it is inadmissible in law. (3) The application for execution of the decree against the legal representative of judgment-debtor No.3 who had died subsequent to the passing of the decree, should be given to the Court which originally passed the decree. Index Note the instant case, as the decree was passed by the learned Joint Civil Judge, Senior division, Surat, the present execution application filed in another Court was not tenable.