AMIYA BALA DATTA Vs. SURESH CHANDRA BHADRA

JUDGEMENT

(1.) This is an appeal from an order of dismissal of an objection under Sec. 47 of the Code of Civil Procedure being Misc. Case No. 56 of 1973 of the 3rd Court of teamed Subordinate Judge at Alipore.

(2.) The following facts are not in dispute :

(3.) Thereafter the plaintiff decree holder filed an execution case for separate possession of his share in 1973 which was registered as Title Execution No. 12 of 1973. In the said Execution Case the appellant filed an objection under Sec. 47 of the Code of Civil Procedure alleging that all the heirs of the deceased Judgment debtor Phanibhusan Dutta had not been brought on record. Her case is that the deceased left behind 7 sons and 6 daughters besides the widow. She also alleged that in the substitution petition two of the sons and a daughter have been wrongly named as Bidhubhusan, Sidhu and Bhabani. She further alleged that the allotment made by the partition commissioner was unfair and in quitious. The substantial point on which the objection under Sec. 47 was fought out was that since all the heirs of Phanibhusan had not been brought on record, the final decree was void, illegal and inoperative and not binding on the heirs of Phanibhusan and therefore not executable as against them.