LAXMINARAYAN Vs. TULSABAI

JUDGEMENT

(1.) THIS revision has been filed by the judgment -debtor who suffered decree of partition. Not only the preliminary decree was passed by the Court on 28.7.1990 but it was affirmed in the appeal and attained finality. Thereafter final proceedings were taken -up and final decree also attained finality. Partition of a residential house was ordered by decree and while passing the final decree it was observed that it was not possible to divide the house in five shares, hence it was necessary to sell the house, and the consideration of that would be distributed amongst the parties to the suit.

(2.) AFTER the final decree attained finality petition was filed before the executing Court challenging the auction of the properties on the ground that plaintiff was a widow and she did not have the right to claim partition of residential house. Hence the decree is a nullity. The trial Court over -ruled the objection and came to the conclusion that these objections cannot be entertained. Learned counsel has urged that it is a case where objection raised goes to the very root of the matter and ought to have been entertained and inquired into.

(3.) THE submission of the learned counsel that the widow was not having right to claim partition. This objection ought to have been raised at the stage of preliminary decree which on appeal has attained finality. This objection was not taken at that time, hence it cannot be looked -into at this stage. Secondly the objection as to the improvements made is also with respect to the distribution of the assets ought to have been taken before final decree was passed, not after that. The other objections with respect to the non -inclusion of entire property in the suit for partition cannot be raised in execution. Learned counsel for the petitioner has submitted that the appeal against the final decree has become barred by limitation.