MOHD OSMAN ALI Vs. MOHD KHASIM

JUDGEMENT

(1.) Petitioners in this revision petition are the nominees of the decree-holder. Third respondent-herein is the decree-holder, respondents 1 and 2 are the Judgment-debtors, respondents 4 to 7 are the assignees of the decree and the 8th respondent is the General Power of Attorney Hoder of the decree-holder (R.3). The suit, O.S.No.29 of 1965, filed on the file of the II Additional Judge, City Civil Court, Hyderabad, by the 3rd respondent-decree holder for specific performance against respondents 1 and 2, was dismissed on 1-7-4-1970. The appeal, C.C.C.A. 14/1972 filed by the third respondent-decree holder in this Court was allowed on 27-10-1976. On 6-7-1989, this Court amended the decree passed in C.C. C.A.No.14/72 to the effect that the sale deeds may be executed by the judgment-debtors in favour of the decree-holder or his nominees. On 15-1-1988, the decree-holder (R.3) assigned the decree in favour of respondents 4 to 7 herein through his G.P.A Holder (5th respondent). Respondents 4 to 7 filed E.A. 17/1985 in the lower court to recognize them as the assignees of the decree and the same was allowed on 30-4-1992. The judgment debtors/respondents 1 and 2 carried the matter to the High Court by filing C.R.P.No. 1579/ 1992, aggrieved by the order passed in E.A. No. 17/1988 by the lower court. That C.R.P. 15 79/1992 was dismissed by this Court on 16- 10-1992, confirming the order passed by the lower court in E.A. 17/88 recognizing respondent 4 to 7 as the assignees of the decree. The assignees/respondents 4 to 7 filed E.P.No. 20/91 in the lower court for execution of the decree and the draft sale deeds to be executed are also filed in E.P. No.20/91 in the lower court, for approval. Judgment- debtors/respondents 1 and 2 contested the said application, contending that there cannot be several sales and there can only be one sale deed in favour of the third respondcnt/decree-holder, pursuant to the decree passed in the suit for specific performance. On 30-3-1993, the objection raised by the judgment- debtors/respondents 1 and 2 was over-ruled. Civil Revision Petition No. 1919/1993 filed by the judgment-debtors/respondents 1 and 2 against the said order of the lower court was dismissed by this Court on 14-6-1993. The judgment-deblors/respondents 1 and 2 carried the matter to the Supreme Court in SLP (Civil)11381/94 and that S.L.P.was dismissed by the Supreme Court on 12-9-1994 after notice to the respondents-therein. Petitioners in this revision petition filed the suit, O.S.No.28 of 1993, on the file of the II Addl. Judge, City Civil Court, Hyderabad, for specific performance of the nomination made by the decree-holder on 16-8- 1987. All the respondents-herein as well as the decree- holder are impleaded as defendants in that suit I. A.No. 16/1993 was filed by the petitioners in that suit for temporary injunction restraining the respondents from executing the decree in O.S.No.29/1965. That petition was dismissed on 29-4-1994. Thereafter, on 5-10-1994, petitioners-heroin filed E.A.No.21/1994 in the said court claiming that the nomination in their favour is earlier to the assignment of the decree made by the decree-holder in favour of respondents 4 to 7 and therefore, they must be recogni/.ed as the nominees for the decree passed in O.S.No.29/1965, in preference to the subsequent assignment of the decree by the decree-holder in favour of respondents 4 to 7 herein. That E.A.No.21/94 was opposed by respondents 4 to 7 in the lower court. On appreciation of the material placed before it, the lower court dismissed E.A.21 /94, holding that the said petition filed under Section 47 C.P.C. is not maintainable; that the nomination of the petitioners by the decree-holder is not capable of being pressed into service for the purpose of ousting the assignees to execute the decree in question; and that the assignment of the decree in favour respondents 4 to 7 has already been recognized, and the same has become final.

(2.) As mentioned already, aggrieved by the abovesaid order of the lower court, petitioners in E.A.No.21/1994 in E.P.No.20/91 in O.S.No.29/1965 on the file of the Additional Chief Judge, City Civil Court, Hyderabad, have filed this revision petition.

(3.) The learned Counsel for the petitioners contended that, under Section 47 of the Code of Civil procedure, the Executing Court has got the authority and jurisdiction to decide as to who, as between the petitioners-herein and respondents 4 to 7 herein, can represent the decree-holder. In other words, he contended that there is no need to file a separate suit for resolving this dispute and the same must be decided by the Executing Court only, in a petition filed under Section 47 CPC