ZAFAR ALI Vs. KHATOOBAI WIDOW OF KAMRUDEEN

JUDGEMENT

(1.) THIS revision petition is directed against the order passed by Addl. Civil Judge, No. 3, Udaipur in Execution case No. 6/87, dated 1.11.1991. The brief facts necessary for the present purposes, may be stated - in a suit filed by Mst. Khatoon against Sayed Munirudeen and Mst. Bashiran, a decree for possession of specified rooms in the house No. 15/211, situated in Churigaron Ka Mohallah, Udaipur, was passed in her favour on 27.3.1987, in Civil Suit No. 37/85, by the court of Addl. Civil Judge, No. 3, Udaipur. A suit, No. 22/68, had also been filled earlier by Mst. Bashiran for partition of certain properties, which included the house No. 15/212 also. That suit was filed against Mst. Khatoon and 19 other persons. In the suit, ultimately, a compromise decree was passed by this Court in First Appeal No. 11/78 on 2nd March, 1989, according to which a decree for payment of Rs. 80,000/ -was passed in favour of Mst. Bashiran, against Nurudeen and Mst. Khatoon, Mst. Bashiren was allowed to remain in possession of the House No. 15/211, stated above, during her life -time. Mst. Bashiren was not to dispose off said property in any manner, by sale, mortgage, gift, will or otherwise. Under the decree, Nurudeen was to become owner of the entire property including house No. 15/211, only after the death of mst. Khatoon. It may be noticed that in the compromise decree passed by this Court, while Mst. Khatoon was given right to retain immediate possession of the entire property left by Qutubudeen, Bashiran's husband, excluding the House No. 15/211, which was to remain in possession of Bashiran during her lifetime. The said house was also to go to Nurudeen only after death of Mst. Khatoon and not before that date. That condition only mean that if Mst. Khatoon survives Mst. Bashiran; Mst. Khatoon will have right over the said house until her death.

(2.) THE decree passed in Civil Suit No. 37/85 was put to execution by the decree -holder Mst. Khatoon against Bashiran. On the death of Mst. Bashiran, the present petitioner -Zafar Ali was brought on record as legal representative of Mst. Bashiran, claiming through her will. It may be noticed here that Mst. Bashiran died on 6.3.1989, after the decree of this Court was passed on 2nd March, 1989. The petitioner -Zafar Ali raised an objection that the decree passed in Civil Suit No. 37/85 is not executable after the decree passed by this Court on March 2, 1989 has come into existence in respect of the house in question. This contention was raised by the petitioner, subject to his rights to challenge the validity of the decree passed by this court dated 2nd March, 1989, which is subjudice before this Court on an application moved by Zafar ali in this behalf. The objector also moved an application under Section 151, C.P.C. that until his objection to the executability of the decree are determined, under Section 47, C.P.C, the execution of the decree may be stayed.

(3.) LEARNED Counsel for the petitioner urged that his objections under Section 47, C.P.C. to the executability of the decree has not yet been disposed off, and has been entertained for further enquiry inasmuch as, the petitioner objector has been asked to lead evidence in support of his objections. Therefore, he contends, that unless his objections are decided, the decree ought not to be executed otherwise the very purpose of deciding the objections would fail.