MOOLCHAND MATHURALAL Vs. POORANMAL KESHARILAL SARAF

JUDGEMENT

(1.) THIS case typically demonstrates how a decree lawfully obtained from the Court may be avoided.

(2.) ADMITTEDLY, plaintiff Pooranmal obtained a decree for permanent injunction restraining Ramnarayan from raising construction on his property in such a way as to obstruct light and air coming through the windows and ventilators of the plaintiff's house. When the decree was sought to be executed moolchand, brother of Ramnarayan, raised an objection under section 47, civil Procedure Code that since he was not a party to the suit in which the decree was passed, he was not bound by the decree and the decree cannot be executed against him as he is the co-owner of the suit property. The application was resisted by respondent Pooranmal, who pleaded that as a matter of fact moolchand had been impleaded as a defendant, but his name was inadvertently omitted in the decree-sheet. He also pleaded alternatively, that Moolchand was the brother of Ramnarayan and consequently Ramnarayan must be deemed to be representing Moolchand in respect of the rights of the joint family to the servient tenament.

(3.) THE objection was dismissed by the trial Court and its order was upheld by the first appellate Court. Moolchand, thereupon, filed a revision petition in this Court, which was admitted on 28-7-76, and subsequently, he made an application that the revision application may be treated as second appeal and this prayer too was allowed on 6-7-76. The second appeal has come up for admission before me.