KRIPAMAY MUKHERJEE Vs. DHIRENDRA NATH MUKHERJEE

JUDGEMENT

(1.) THIS is a revisional application at the instance of the decree-holder and is directed against an order dated November, 19, 1979, passed by the learned Subordinate Judge, 8th Court, Alipore, in Title Execution Case No. 22/74. By the order impugned the learned Subordinate Judge had stayed further proceedings of the execution case pending disposal of an objection under section 47 of the Code of Civil Procedure which has been registered as Misc. Case No. 16/79. The revisional application is being heard on contest by the judgment debtor objector in Misc. Case No. 16/79.

(2.) CERTAIN facts are not very much in dispute. The decree holder (petitioner before us) obtained a decree for eviction as against the judgment debtor from the suit premises to which the decree holder claims title on the basis of two Wills, one by his grandfather Becharam Mukherjee who died in the year 1933 and the other by his grandmother Nagendra Bala who died in 1956. Probate in respect of Becharam will was obtained by the executor in probate case No, 113/34 while the probate of Nagendra Balas will was obtained in probate case No. 17/58. The latter probate was obtained though it was contested by the present judgment debtor and such probate was upheld up to this Court. It is only after the decree holder got his title established on grant of probate as aforesaid, he instituted the suit resulting in the decree now under execution.

(3.) IT appears that when the decree was put into execution, several attempts were made to frustrate the execution. A proceeding for revocation of the grant made in respect of Becharam will was instituted as late as in October 1977 by the present judgment-debtor opposite party which is now pending. A suit had also been filed by the judgment-debtor opposite parity for declaration 6f their title in their fractional share in respect of the suit property which is also pending. Injunction in both the proceedings was sought for so as to restrain the present decree-holder from executing the decree now under execution. But such prayer for injunction was ultimately refused. At this stages the judgment-debtors have put in the objection under section 47 of the Code and the foundation of the objection is the same as in the foundation of their claim in the suit, for declaration of title, namely, that the will of Becharam is a forged one and that the will executed by Nagendra Bala was not a voluntary act on her part but was the result of fraud and misrepresentation. Pleading as such in the objection under section 47 of the Code, the judgment-debtors plead that the decree is not binding. Now prima facie the executing court has, in our view, no jurisdiction to go into the question Whether the probate in respect of the two wills which constitutes the foundation of title of the decree holder, had been lawfully granted or not. Such being the position, the objection under section 47 of the Code appears prima facie to be a frivolous one which has been filed only when the judgment debtor failed to obtain an injunction from the appropriate court where the proceeding for revocation of the grant is still pending. This aspect the learned executing Court wholly over-looked in granting the stay by the order impugned pending disposal of the objection under Section 47 of the Code.