TAKERIMUN NISA Vs. SULTANA KHANAM

JUDGEMENT

(1.) The three petitioners along with one Najmun Nisa brought Money Suit No. 100 of 1986 against the opposite parties who are the legal representatives of one Syed Ekhlague Ali for realisation of a sum of Rs. 4,571.35 paise representing their share of house-rent drawn by said Ekhlaque Ali. The suit was dismissed on contest. In appeal preferred by the plaintiffs the trial Court judgement and decree were set aside and the appeal was allowed with the observation that the plaintiffs are entitled to a decree for their share as claimed in the suit from the defendants. Against the appellate decree, Second Appeal was preferred td this Court which was dismissed on 26-7-90. Thereafter petitioners levied execution against the defendants-opposite parties claiming their share of house-rent. The defendants raised their objection under S. 47 of the Code of Civil Procedure to the executability of the decree passed in the Money Suit on the ground that the decree under execution was a simple declaratory decree and there being no direction that the defendants are to make payment, the decree is in executable and, therefore, the execution case cannot proceed. The Executing Court came to find that since no specific direction had been given by the appellate Court in the decree to the plaintiffs to recover any amount from the defendants and they having not been directed to make any payment to the plaintiffs, the decree is not executable. Consequently it has been held in the impugned order, that the execution proceeding is it not maintainable. This order of the executing Court is under challenge in this revision.

(2.) The learned counsel for the petitioners - (plaintiffs) attack the impugned order on the ground that the suit. was for money and the same having been decreed in appeal, the petitioners were entitled in law to put the decree into execution for realisation of their share of money and therefore the impugned order should be vacated with a direction that the execution case shall proceed.

(3.) The learned counsel for the opposite parties, on the other hand, reiterated the argument which was advanced before the executing Court and accepted by it.