NOOR ZAMAN KHAN Vs. MAIMUNNISSA BIBI

JUDGEMENT

(1.) The facts which are no longer in dispute in this case are as follows:-- One Musammat Afzul Bibi obtained a decree for Rs. 465/- on 1-12-1848, against respondents Nos. 3 to 5 of this Court. On 11-1-1850, she executed the decree in Execution case No. 22 of 1950. On 3-2-1950, she made a gift of eight annas of her properties including the decide, in favour of her two daughters, who are respondents Nos. 1 and 2 in this Court. On 8-2-1950, Musammat Afzul Bibi made a gift of the remaining share of her properties, including eight annas of the decree, to her son, Noor Zaman Khan, the appellant in this Court. On 5-5-1950, Execution case No. 22 of 1950 was dismissed on part satisfaction as respondents Nos. 1 and 2 certified payment of the decree to the extent of their eight annas interest which was gifted to them by their mother, Afzal Bibi. On 18-2-1951, Afzul Bibi cancelled the gift in favour of the appellant. On 11-7-1951, she died. On 29-8-1952, the appellant (sic) a petition for execution of the remaining (sic) annas of the decree on the ground that he was entitled to the entire remaining decree on the basis of the gift made in his favour by his mother. He did not implead respondents Nos. 1 and 2 in the execution case. The judgment-debtors (respondents Nos. 3 to 5) filed an objection under Section 47 of the Code of Civil Procedure on the ground, amongst others, that the execution was not maintainable because respondents Nos. 1 and a had not been made parties. Respondents Nos. 1 and 2 also appeared and filed an application to the effect that they were interested in the decretal money because the gift in favour of the appellant had been cancelled by Afzal Bibi and they as well as the appellant had inherited the remaining eight annas of the decree as heirs of Afzal Bibi. The learned Munsif, who heard the objections, overruled them. Respondents Nos. 1 and 2 filed an appeal which was heard by the and Addl. Subordinate Judge of Sasaram. By his order dated 14-7-1853, the learned Additional Subordinate Judge allowed the appeal and dismissed the execution case. Hence, the appellant has filed this appeal in this Court.

(2.) The first point which Mr. Mukherjee has urged on behalf of the appellant is that no appeal at the instance of respondents Nos. 1 and 2 lay in the lower appellate court, and hence the order passed by that Court is completely without jurisdiction. He has made the submission that respondents Nos. 1 and 3 as well as the appellant have claimed to be interested in tht decree as heirs of Afzal Bibi, and a dispute between two sets of persons relating to inheritance from the deceased decree-holder, being a dispute between heirs of the same party inter se, is not a dispute between the parties to the suit or their representatives, and does not, therefore, come within Sub-section (1) of Section 47 of the Codt of Civil Procedure. In support of this submission, he has drawn my attention to the case of Md. Abdul Matin v. Mt. Bibi Hamidan, 13 Pat LT 537: (AIR 1933 Pat 339) (A). In my judgment, that decision is clearly distinguishable. The dispute between the heirs of the deceased decree-holder in that case related to what the actual share of each was. Such a dispute was held not to come within the purview of Section 47. Where, however, tht controversy between the parties relates not to the share of each of them but to the question whether ont party alone or both parties are legal representatives of a party, the case is clearly covered by Section 47. Sub-section (3) of that section reads :

(3.) It seems clear that this sub-section provided for a case of the present kind as the question which arises in this case is whether respondents Nos. 1 and 2 are or are not representatives of the deceased decree-holder.