SHIVA PUJAN DUBEY Vs. BABAN LAL

JUDGEMENT

(1.) Two points have been pressed in this appeal: (1) that Section 47 of the Code of Civil Procedure has no application to the facts of the present case, and, (2) that the plaintiffs-appellants' suit is not barred by res judicata. (2) In order to appreciate and decide the points raised in the appeal, it is necessary to know a few facts. A decree for mesne profits was obtained by the respondents on the 14th January, 1933 against the plaintiffs-appellants, their father, and others. Before the decree was put into execution, the plaintiffs, and some others, applied for setting aside the ex parte decree for mesne profits, under Order 9, Rule 13 of the Code of Civil Procedure. Meanwhile, the decree for mesne profit, was executed in Execution Case No. 159 of 1931. The application of the plaintiffs under Order 9, Rule 13 of the Code of Civil Procedure was allowed, and the ex parte decree for mesne profits, as against the plaintiffs also, was set aside on the ground that the plaintiffs, who were minors then, were not duly represented, and, as such, the decree against them was void. The executing court on receipt of the order, setting aside the decree under execution against the plaintiffs, ordered that the execution could not proceed against the plaintiffs, as also against some other persons, who were parties to the proceeding under Order 9, Rule 13 of the Code of Civil Procedure.

(2.) This execution case was dismissed for default, and, thereafter, a fresh execution case No. 21 of 1933 was taken out by the defendants respondents, and, the properties in dispute, which are the shares of the plaintiffs, were also put up to sale, and purchased on the 22nd January, 1935, by the defendants-respondents. They, thereafter, applied for delivery of possession, and then the plaintiffs filed an application under Section 47 of the Code of Civil Procedure objecting to the delivery of possession on the ground that the decree under execution against the plaintiffs having been set aside, it could not be executed against them, or their properties, and, as such the sale was not binding on them. This objection was, however, rejected; and, the defendants, thereafter, got delivery of possession. Ultimately, an appeal was taken, against this order, to the High Court, which was heard and decided by Courtney-Terrell, C. J. and James, J., and, they dismissed the appeal of the present plaintiffs.

(3.) The plaintiffs, thereafter, as majors, brought the present suit, out of which the present appeal arises, for a declaration that the sale, held in Execution Case No. 21 of 1933, in respect of the properties of the plaintiffs, was a nullity, and, not binding on them, and, therefore, they inter alia sought a declaration of their title, and also asked for recovery of possession.