NAND LAL Vs. INDERJIT

JUDGEMENT

(1.) ONE Madan Lal was the owner of the shop in dispute which was sold to Jagru. This sale was challenged by the sons of Madan Lal; namely, Nand Lal, Kesri Nandan and Krishan Pal on the ground that the sale was not for a consideration and was therefore, without legal necessity. The suit for declaration was decreed and when the matter came up before this Court, the sale was converted into a mortgage and it was held that the mortgage can be redeemed on payment of Rs. 628/- on the death of vendor, Madan Lal. Madan Lal, vendor, died on 23-121969, and thereafter, his sons filed a suit for possession claiming themselves to be the heirs along with Smt. Raj Rani d/o Madan Lal, who was made a proforma defendant. They claimed that they were entitled to the possession of the property on the basis of the decree of redemption of mortgage. The suit was decreed against the respondents who filed an appeal before the District Judge, which was also dismissed on 17-10-1979.

(2.) THEREAFTER, decree-holders filed execution application in order to take possession of the shop in dispute. Before possession of the shop could be delivered in execution of the decree, Inderjit Singh who is son of Mukandi Lal, one of the judgment-debtors, filed an objection petition under Section 47, read with Order 21, Rule 58, Civil Procedure Code, challenging the maintainability of ths execution application. He raised an objection that he alongwith his father Mukandi Lal has purchased 2/5th share from Kesri Nandan and Koshalya Devi, two of the decree-holders, and therefore, he cannot be dispossessed from the shop in dispute being one of the co-sharers. This objection petition was resisted by the petitioner and the remaining decree-holders. The following issues were framed by the executing Court :-

(3.) NO one appears on behalf of respondent, objector. Counsel for the petitioner contended that objection petition under Section 47, C. P. C. was not maintainable on behalf of respondent No. 1 as he was not a party to the suit. He further contended that Order 21, Rule 58, C. P. C. relates to the attachment, whereas, the property has not been attached here; rather, the execution has been filed for the delivery of possession of the shop.