DOWLAT BI Vs. KHAJA SHERIFF

JUDGEMENT

(1.) The civil revision petition is filed against the fair and decretal order dtd. 15/11/2022 made in R.E.A.No.4 of 2022, in R.E.P.No.94 of 2021, in O.S.No.1163 of 2004. The revision petitioners are the defendants 3 and 4 in the suit and the judgement debtors.

(2.) It is not in dispute that the suit filed in O.S.No.1163 of 2004 by the respondents 1 to 4 herein for declaration of recovery of possession decreed in favour of the plaintiffs. The appeal suit filed by the other defendants were dismissed so also the second appeal filed before the High Court was dismissed. The decree holder filed execution proceedings in REP No.94 of 2021, and during the pendency of the execution proceedings, the revision petitioners filed REA No.4 of 2022, under Sec. 47 of the Code of Civil Procedure. The petition was filed to declare that the half share in the petition mentioned property belongs to the revision petitioners and therefore, the decree in O.S.No.1163 of 2004 is un-executable.

(3.) In this regard, the learned counsel for the petitioner drew the attention of this Court with reference to the findings of the Trial Court in its statement which was reiterated by the First Appellate Court. The said contention was taken into consideration by the Execution Court in REA No.4 of 2022, wherein, the findings of the Execution Court reveals that the question regarding improper inclusion of share of the party in the decree shall be questioned by the petitioners only before the Appellate Courts, more so, when the revision petitioners herein are arrayed as defendants in the original suit. Thus, the revision petitioners had an opportunity to raise the said claim before the Trial Court, First Appellate Court and in Second Appeal and therefore, the said contention raised at the stage of execution cannot be considered.