KALABATI Vs. CHANDRANARAIN MANDAL

JUDGEMENT

(1.) This application in revision by the , two petitioners has arisen in these circumstances-In 1943, Deonarain Mandal since deceased, husband of the two Petitioners brought a suit for specific performance of contract against opposite party Nos. 2 to 7. Opposite party Nos. 2 to 8 had agreed to sell the property to him. Opposite party Nos. 4 to 7 were subsequent purchasers with notice of the contract for sale in favour of Deonarain Mandal. The suit was decreed by the trial court. The appeal of opposite party Nos. 4 to 7 before the lower appellate Court was also dismissed. They preferred Second Appeal No. 842 of 1950 in this Court and during the pendency of this appeal Deonarain Mandal died. The two Petitioners, his two widows, were substituted in the second appeal on the 1st February, 1956, and ultimately the second appeal was dismissed on the 31st July, 1956. Thereafter, Title Execution Case No. 176 of 1959 has been filed in the court of the Munsif at Madhipura by the two widows for execution of the decree for specific performance and another execution case, being Title Execution case, No. 178 of 1959, has been filed in the same court by Chandranarain Mandal opposite party No. 1, wherein he has impleaded the two widows also as parties On the ground that they are not ready to joint in the execution case with him. Both the execution cases, it appears are; pending in the same court.

(2.) The order sheet of Execution case No. 176 of 1939 which is before me, shows that, after the office checked the application in Execution, it was directed by order dated 1-8-59 to put it up on 3-8-59 in presence of decree holder's lawyer. On the latter date the order reads "Heard lawyers. Put up on 6-8-59 for further hearing." On 6-8-59 the order is :- "Dhr files hajri. Heard lawyers to 14-8-59 for order," It is not clear what matters were heard on 3-8-59 and 6-8-59 and who was the lawyer heard. The order dated 14-8-59 shows, however, that the matter, which was heard on these dates, was as to whether Chandranarain Mandal could execute the decree in question. I could not exactly follow how both the execution petitions were heard together. There does not seem to be any Order to that effect. Be that as it may, so far as the order passed in Execution case No. 176 of 1959 is concerned, the court below held by the order dated 14-8-59 that the executory of this decree should be the two widows of Deonarain Mandal and also Chandranarain Mandal. The parties were given chance to join hands in executing the decree. Thereafter, On 28-8-59 Chandranarain Mandal filed a verified petition along with the power praying to be made a decree holder in Execution Case No. 176 of 1959. This prayer was allowed by the order of that date. The Petitioners therefore, have come up in revision to this Court against the said order.

(3.) Mr. S. N. Datta, appearing in support of this application has urged two points (i) that, on the face of the decree, the two Petitioners only were the decree, holders and Chandranarain Mandal cannot be heard in the execution case filed by them that he has also a right to execute the decree and as such cannot be" added as a party to it, and (ii) that in any event the question inter se between the alleged heirs of the decree holder cannot be decided in an execution case under Section 47 of the Code of Civil Procedure, it has got to be decided by a separate suit.