SANWAL RAM Vs. HANUMAN DAS

JUDGEMENT

(1.) THESE two revisions arise out of the same execution matter and therefore, the are being disposed of by a single order. The revision No. 132/83 has been filed by the decree -holder, whereas the revision No.25/85 been filed by judgment -debtors in the same proceedings though against a different order.

(2.) BRIEFLY stated the facts leading to these revisions are that the decree holder Sanwal Ram had obtained a decree for ejectment in respect of a shop on 17 -11 -1980 against the judgment debtors Hanuman Das and firm Hanu -mandas Shrigopal. That decree had been upheld right upto the Hon'ble Supreme Court when the execution of that decree was levied, the decree holder's difficulties arose as usual. The judgment debtors filed an objection under Section 47 CPC to the effect that the judgment -debtors had an under ground adjacent to the shop in question in their tenancy from one Lal Chand S/o Gopaldas and the way to that under -ground was only through the shop in respect of which the decree for ejectment had already been passed and as the judgment -debtors had been using that way for the last about 12 years, since their taking the under -ground on rent the decree holder cannot take possession of the shop in execution of the decree because that would obstruct the judgment -debtors from approaching the under -ground. It was added that there was no decree for ejectment of the judgment -debtors from the under ground in question. It was also pleaded that if the judgment -debtors is ejected from the shop in question it will amount to his ejectment from the under -ground also, although there is no decree for ejectment in respect of that under -ground. In these circumstances it was prayed that the decree may be declared to be inexecutable and the executable proceeding be dropped. The decree -holder resisted this application and urged that the question whether the judgment -debtors had any right of access to the underground in question which he alleges to have taken on rent from Lal Chand cannot be agitated in the execution proceeding in respect of the shop in dispute and no enquiry in this repect, therefore, was at all necessary. It was also urged that this objection has never been raised in the original suit at any stage, and therefore, was barred by res judicata. He prayed that the objection petition may be summarily rejected. The learned Munsif before whom the execution proceedings were going on however, held that the objection could not be summarily rejected as it could not be said to be barred by constructive res judicata, and as the question raised was a question relating to the right to the property, it required full -fledged enquiry. The objection petition, therefore could not be summarily rejected. He accordingly directed by his order dated 29 -1 -1983 that a full -fledged enquiry in respect of the objection raised by the judgment -debtors may be held. Aggrieved of this order the decree -holder has filed the revision No. 132/83. While the executing court was proceeding with the enquiry directed under the aforesaid order, the decree -holder got a document produced from one of his witnesses and the judgment -debtors objected to the production of the document at that stage. That objection was overruled by the executing court by the order dated 15 -12 -1984 and aggrieved of that the judgment debtors have come up in revision No. 25/85.

(3.) THE learned Counsel for the judgment -debtors had raised a preliminary objection that the decree -holder's revision is not maintainable because the court below has not decided any case but has merely directed an enquiry in respect of the objections filed by the judgment -debtors under Section 47 CPC and, therefore, such a revision is not maintainable. I do not find any substance in this contention, as would be clear from what is going to follow the learned Munsif has assumed jurisdiction which was not vested in him in directing this enquiry. Under Section 47 of the Code of Civil Procedure, the questions between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the execution court. The question whether the judgment -debtors had any other premises belonging to a third party in his possession as a tenant and whether he had any right of way through that suit property to approach that other property can by no strech of imagination be said to be a question relating to the execution, discharge or satisfaction of the decree for ejectment of the shop. Whether the tenant in respect of other property has any right of easement in respect of the shop for which a decree for ejectment has been passed, therefore, could not have been the subject matter of enquiry by the executing court and when the executing court directs an enquiry in such a matter, it clearly acts without jurisdiction and assumes the jurisdiction which is not vested in it. In these circumstances this Court can certainly interfere with such an order of the executing court. The preliminary objection is, therefore, overruled. Now coining to the matter of the revision it may at once be stated that as, while dealing with the preliminary objection it has been held that the executing court had no jurisdiction to direct an enquiry in this matter, the order is clearly improper and perverse. It deserves to be set aside.