AISHREE DEVI Vs. GHANSHYAM DAS

JUDGEMENT

(1.) The present revision has been filed against the order dated 18.11.2016 passed by the Special Judge (SC/ST)/Additional District Judge, Gautam Budh Nagar rejecting Application No. 153-Ga filed by the revisionists to recall /set aside the order dated 16.09.1997 passed in Execution Case No. 24 of 1997 with a further prayer to substitute the revisionists in place of deceased-decree-holder (Raghuraj Singh).

(2.) The facts giving rise to the present revision are as follows:

(3.) Sri A.K. Mehrotra, learned counsel for the revisionist, has assailed the order passed by the court below on the ground that under section 47 of the Code of Civil Procedure 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 the section, be determined by the Court. It has been submitted that the terms "representative of a party" used in sub-section (3) of section 47 of the Code has to be accorded wide interpretation and it includes an assignee /transferee of a party. Therefore, the question whether the opposite party no.1 (Ghanshyam Das) was assignee or not and whether the assignment deed dated 30.12.1995 was valid or not ought to have been decided in the execution proceeding itself as a civil suit and the objection ought not to have been discarded summarily as was done by the court below. In support of the above submission he has placed reliance on: (i) a decision of the Apex Court in the case of Gangabai Gopaldas Mohata v. Fulchand, (1997) 10 SCC 387; (ii) another decision of the apex court in the case of Jugal Kishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376; and (iii) a decision of the Jammu Kashmir High Court in the case of Misra Bibi v. Mohd. Hussain, AIR 2004 (J&K) 108= 2003 LawSuit (J&K) 322 (paragraph 11).