KISHAN LAL Vs. DISTRICT JUDGE HARIDWAR

JUDGEMENT

(1.) D. K. Seth, J. Opposite parties 3 and 4 filed a suit for ejectment on the ground of arrears of rent in 1984. The suit was decreed on 2nd December, 1986. In the resultant execution arising thereout the petitioner on 11th March, 1987 had filed an objection under Section 47 of the Code of Civil Procedure alleging therein that after the decree was passed, a written agreement was executed between the decree-holder and the judgment-debtor in which the dispute between the parties was compromised and a new tenancy was created on 22nd February, 1987. There fore, the said decree was no more executable. By Order dated 2nd February, 1993, the learned executing court allowed the application under Section 47 and dismissed the execution proceedings. Against the said order dated 2nd February, 1993, a revision being Revision No. 12 of 1993 was preferred by opposite parties 3 and 4 which has since been allowed by order dated 13th October, 1993. It is against this order that the present application under Article 226 of the Constitution has been sought to be moved.

(2.) IT is alleged on behalf of the petitioner that the impugned agreement was examined by the hand- writing expert and the learned Munsif had found the same to be genuine and, therefore, had allowed the same but the learned revisional court reversed the order of the learned Munsif only on technical ground that the said agreement does not satisfy Order XXI, Rule 2, C. P. C. According to him, Order XXI, Rule 2, C. P. C. does not come into play in the present case. According to him, the application under Section 47, in itself should be treated as an application under Order XXI, Rules 2 (2) and, therefore, by reason of the finding that signature ap pearing on the agreement is genuine, the case falls within the ambit of sub-rule (2-A) of Order XXI, Rule 2.

(3.) NOW turning to the question as to whether the application under Section 47 could be treated as an application under Order XXI, Rule 2, C. P. C. and the judg ment-debtor should avail of the benefit thereof. Section 47 provides as follows : "47. Questions to be determined by the Court executing decree.- (1) All questions aris ing between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2 ). . . . . . . . . . . . . (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Explanation I.- For the purposes of this section, a plaintiff whose suit has been dis missed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II.- (a) for the purpose of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such pur chaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section. "