JOGINDER SINGH Vs. VIRINDERJIT SINGH GILL

JUDGEMENT

(1.) The dispute is only with reference to the property in Khasra No.2259 to an extent of 2 kanals 18 marlas equivalent to 58 marlas. The plaintiffs have claimed 1/4th share and that would mean that the plaintiff would be entitled to 14/1/2 marlas. Before the passing of the final decree a Local Commissioner had been appointed. He had inspected the property and he had identified OPQN as the property representing 14/1/2 marlas to be allotted to the plaintiffs. In the property identified as OPQN, the objector has raised construction during the pendency of the suit, inspite of the order of the status quo.

(2.) The objector is the son of the judgment debtor himself. The judgment debtor having remained ex-parte, his son cannot have a better case in defence than what his father had. The father is the 67th defendant and he has engaged a counsel but did not file the written statement. The Court had imposed costs as a condition preceding to receiving the written statement and since the costs was not paid, the defence was struck off. I cannot find any equities as availing to the objectors and the contentions by him that the final decree was incompetent since it has not determined the share of the defendant, has been dealt with correctly by both the Courts below. There is nothing inherently wrong for a Court to pass a final decree for a plaintiff who alone had sought for his share to be predicated, when the defendants who had also specific shares did not apply for a preliminary decree and seek for allotment by final decree. The case law has been correctly dealt with by the Courts below that the final decree could be for partition of a person claiming the share and the Court need not effect the division amongst the defendants if such a partition had not been sought for by the defendants and they chose to remain in joint possession among themselves.

(3.) When the final decree was passed and when the delivery was sought by the decree-holder, the objection has come from the son of the judgment debtor who is the present petitioner through petitions filed under Order 21 Rule 58 read with Order 21 rule 97 with Section 47 CPC. I find it to be a curious nature of objection which the Court must have rejected even at the threshold. Section 47 CPC could be invoked only by parties to the suit or their successors. The objection under Section 47 will relate to all issues regarding the subject of execution and it cannot adjudicate on individual rights who are not parties. Order 21 rule 58 CPC, on the other hand, is a manner of adjudication of claims by third parties to suit. The decision rendered under Order 21 Rule 58 by virtue of Clause 4, is in the nature of the decree which is appealable. The order passed under Section 47 CPC between the parties shall not be appealable and the order will be final.