SHIV PRASAD Vs. TALI DEVI

JUDGEMENT

(1.) THIS execution second appeal, filed by the judgment-debtors against the judgment of the District Judge, Jaipur District. Jaipur whereby the order passed toy the Civil Judge, Jaipur District. Jaipur dated 4-12-1967 was upheld, raises an important question whether the objection filed by the judgment-debtor that the property attached in the execution of the decree cannot be sold as the judgment-debtor had no saleable interest therein is covered by the provisions of Section 47, civil P. C. or not.

(2.) IT appears that the respondents-decree-holders obtained a decree against the appellants and in execution thereof two shops were attached and a proclamation of sale was issued by the Executing Court. The judgment-debtors raised a plea that they were not the owners of these shops and that their lease-hold rights in these two shops cannot be sold in the execution of the decree against them. The learned Civil Judge dismissed the objections of the Judgment-debtors by writing a four line judgment. On appeal the learned District Judge raised an important question of law whether the objection raised by the judgment-debtors can be entertained by the executing Court under Section 47, Civil P. C. After hearing the parties, learned District Judge held that objection cannot, be filed by the judgment-debtors under Section 47 Civil P. C. as it does not relate to the execution, discharge or satisfaction of the decree. He, therefore, rejected the appeal of the judgment-debtors. It is in these circumstances that the judgment-debtors have filed this second appeal before this Court.

(3.) SECTION 47, Civil P. C. lays down that all questions arising out between the parties to the suit in which the decree was passed and relating to the execution discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The contentions of the learned counsel for the appellants is that the objection raised by the judgment-debtors that their interest in the attached property are not saleable related to the execution of the decree and, therefore, the executing Court should have entertained and decided their objection. In support of this view learned counsel placed reliance on Virendra kishore Shrivastava v. Kesharinandan Prasad. AIR 1962 Pat 410 and Kusum kumari v. Firm Harnath Rai Birijraj, AIR 1941 Pat 240.