NAINPAL Vs. NIHAL SINGH

JUDGEMENT

(1.) Petitioner seeks revision of order dated August 8, 1991 whereby the objection petition filed by him was dismissed by the executing Court.

(2.) Nihal Singh respondent No. 1 filed a suit for possession by way of pre- emption against Bahadur Singh and others. In the said suit, defendants 1 and 3 were proceeded ex parte on April 26, 1983. Defendants No. 4 and defendant No. 5, now petitioner were also proceeded ex parte on January 23, 1982 and April 30, 1982 respectively. Defendant Nos. 2 and 7, however, contested the suit. It may be noticed at this stage that defendants 1 to 5 are real brothers being sons of Kanshi Ram. The suit filed by Nihal Singh, respondent No. 1 was ultimately decreed by judgment and decree dated June 3, 1987. It is thereafter that petitioner filed an objection petition on July 30, 1988, under Section 47 read with Order 21 Rule 97 of the Code of Civil Procedure. It was pleaded therein that the decree was without jurisdiction and a nullity against the objector because the objector was minor at the time of institution of the suit and he was not properly represented in the suit. In the circumstances, it was alleged that the decree was not executable against him as in that situation, the decree would be bad for partial pre-emption, which is not permissible in law. The objection petition was contested by the decree holder. The allegations made in the objection petition were denied. The factum of the objector being minor on the date of institution of the suit was also denied. It was rather alleged that the defendants filed appeal against the decree passed by the trial Court which was dismissed on May 12, 1988. The decree holder also brought out that the defendants filed a suit against Bahadur Singh etc. in which Nainpal was also a party and stay application in the said suit was dismissed on August 30, 1988. In the present objection petition, the executing Court framed the following issues :

(3.) After the parties were afforded opportunities to produce their evidence in support of their respective contentions, the executing Court came to the conclusion that no evidence was brought on record to show that defendant No. 5 petitioner was a minor at the time of institution of the suit and he continued to be so till passing of the decree. Consequently, the objection petition was dismissed. It is against this order of the executing Court, the present revision petition has been filed.