MAMTA SINGH Vs. RAM KRIPAL SINGH

JUDGEMENT

(1.) Heard Sri. B.P. Singh, learned Senior Advocate assisted by Sri. Vivek Kumar Singh on behalf of the petitioner and Sri. P.N. Saxena, learned Senior Advocate assisted by Sri. K. K. Mishra for the respondent. With their consent, this petition is being disposed of finally at this stage, without inviting a counter affidavit.

(2.) The respondent instituted Original Suit No.285 of 1992 against Shamsher Singh for specific performance of an agreement for sale allegedly executed by Dhawal Singh, father of Shamsher Singh, in his favour. The suit was decreed ex parte on 30.5.1995. The decree was put to execution by execution case No. 6 of 2006. Therein, the petitioner, who is widow of Shamsher Singh, judgement-debtor filed objections under section 47, C.P.C. contending that the decree passed in the suit is against a dead person in as much as her husband Shamsher Singh was not traceable since the year 1984 and would thus be presumed to have died a civil death. The objections were opposed by the respondent-decree holder.

(3.) The executing court rejected the objections under Section 47, C.P.C., by impugned order dated 13.8.2013. It held that the executing court cannot go behind the decree. All the pleas, now sought to be raised had already been decided during trial. Accordingly, it did not find any force in the objections filed by the petitioner under Section 47, C.P.C. The order has been affirmed by the revisional court. Apart from endorsing the view taken by the executing court, the revisional court further noted that there is no order by any court holding that Shamsher Singh was not alive on the date decree was passed and consequently, the revisional court did not find any force in the objections filed by the petitioner. The revisional court further noted that in Original Suit No. 262 of 1989, after the death of Dhawal Singh, his son Shamsher Singh was substituted by an order dated 18.8.1992. It further noted that in criminal case No. 2057 of 1991 State v. Dhawal Singh and others, wherein Shamsher Singh was one of the accused, he had appeared in the proceedings until 16.1.1993. For these reasons, the revisional court rejected the plea set up by the petitioner and dismissed the revision. Aggrieved thereby, the petitioner has approached this Court invoking its supervisory jurisdiction under Article 227 of the Constitution.