ARAKHITO RAUTO Vs. PATITO RAUTO

JUDGEMENT

(1.) THIS appeal arises out of an order under S.47, Civil P.C. passed in the execution proceedings which arose out of a decree obtained in Original Suit No.31 of 1947 wherein the plaintiffs brought a suit for declaration that defendant 3, a minor, was not the adopted son of the deceased husband of defendant 1. Defendant 2 was made a party as the natural father of defendant 3. The decree was in terms of a compromise where the adoption was accepted; but the terms of the compromise ran to the effect that certain of the items "were agreed by defendants 1 and 3 to be given and defendants 1 and 3 have hereby given absolutely." Objection having been raised before the execution Court to the effect that the decree to that extent was not executable, the executing Court passed an order rejecting the objection petition and allowing the decree -holders to proceed with the execution. The present appeal has been filed against that order.

(2.) BY the learned counsel, appearing on behalf of the respondents, a preliminary objection is taken that the appeal (was not?) by the guardian, who was acting as the guardianad -litem in the suit and the execution proceedings. The appeal has been filed by defendant 2 for self and as guardian of defendant 2, We find from the decree that as a matter of fact the minor defendant 3 was represented by defendant 1 as the guardian -ad -litem. In the execution proceedings also the minor defendant 3 was represented by defendant 1. The present appeal has been filed by defendant 2 on his own behalf and also as representative of minor defendant 3 who was judgment -debtor 3. The objection is a valid objection and must prevail in view of the provisions of O.32, R.3(5), which runs as follows:

(3.) IT has to be made clear here that in fact defendant 2, under the terms of the compromise, stands under no obligation to deliver possession of the properties which were the subject -matter of the compromise. As such, the execution proceedings against defendant 2 would not be maintained. The appeal, therefore, fails subject to the above observations. Appeal dismissed.