JAMADAR BHARTI Vs. CHANDRAMA GIRI

JUDGEMENT

(1.) THE petition has been filed against the order dated 13.1.1998 passed in Misc. Case No. 4 of 1997 whereby the petition filed by the opposite party - petitioners under section 47 of the Code of Civil Procedure at the stage of preparation of final decree for dismissing/staying of preparation of final decree has been held to be maintainable and the petition filed by the petitioners challenging the maintainability of such petition has been rejected.

(2.) THE suit for partition was decreed in the year 1974. The appeal was dismissed in the year 1981. No step for preparation of final decree was taken. In the meantime Rajmato Kuer died in the year 1994. The petitioners filed a petition under Order 1 Rule 10 of the Code of Civil Procedure for being added as legal representative of Rajmato Kuer. The said petition was allowed. Thereafter at the instance of the petitioners final decree was being prepared. The opposite party filed a pettion under section 47 of the Code of Civil Procedure making prayer therein that there is no legal representative and as such the process of final decree be dismissed/stayed. On the said petition Misc. Case No. 4 of 1997 was registered. The petitioners filed a petition challenging the maintainability of the miscellaneous case under section 47 of the Code of Civil Procedure. The court held that the petition under section 47 of the Code of Civil Procedure is maintainable and rejected the petition of the petitioners.

(3.) LEARNED counsel for the petitioners submitted that the petition under section 47 of the Code of Civil Procedure is maintainable in execution case and not in the case of preparation of final decree whereas learned counsel for the opposite party submitted that the petitioners are not legal representative of the deceased Rajmata Kuer rather opposite parties are legal heirs.