PUSHPA Vs. GANPAT SINGH

JUDGEMENT

(1.) THIS is an appeal by Smt. Pushpa widow of Shri Magsingh under sec. 100 read with sec. 47 C. P. C. against the judgment and decree of Additional District Judge No. 1, Jodhpur, dismissing the objection of the judgment-debtor under sec. 47 C. P. C.

(2.) THE Material facts giving rise to this appeal briefly stated are as follows: - Respondents Nos. 1 to 3 filed a suit for partition against one Magsingh, the husband of the appellant in the court of Civil Judge, Jodhpur. A preliminary decree for partition was passed by the learned Additional Civil Judge on 30th of March, 1966. During the proceedings for final decree the matter was compromised whereunder Magsingh was allowed to keep the entire house, the price of which was determined at Rs. 7,750/- and Magsingh agreed to pay half of the amount of Rs 7,750/ towards the share of the respondents Nos. 1 to 3 in the joint property, Magsingh, however, failed to pay the amount agreed to under the aid decree. THE respondents Nos. 1 to 3 therefore took out execution and got the house of Magsingh attached in July 1969. Magsingh thereupon filed objection under sec. 47 C. P. C. on 19-9-69 inter alia alleging that the decree in question being a money decree could not have been passed in a partition suit and as therefore not executable. This objection was dismissed by the executing court by its order dated 2nd of April, 1970 Magsingh went in appeal against the order of dismissal of his objection but the appeal too was dismissed by the District Judge, Jodhpur, on 28th of August, 1971. THEreafter second appeal was taken by Magsingh reiterating his objection taken under sec. 47 C. P. C. This appeal was dismissed in limine by Gattani J. who held that the decree being a money decree was capable of execution. Consequently, the property was ordered to be auctioned and notices under O. 21 r. 66 C. P. C. were issued to the judgment debtor. Magsingh thereupon again filed objection on 15-10-73 on the ground that no amount is due under the decree and so the decree was not executable. This objection of the judgment-debtor Magsingh too was dismissed on 5-1-73 It appears that Magsingh died thereafter and his widow Smt. Pushpa who is the present appellant before me and the other legal representatives, namely, respondents Nos. 4 and 5 were brought on the record in place of deceased Magsingh. It was now the turn of Smt. Pushpa who filed objection under O. 21 r. 66 C. P. C. on 16-1-73 inter alia contending that money decree in question could not have been passed in a partition suit and so it was not executable. This objection was turned down by the executing court on 16-12-73, No appeal was taken against this order and so the same became final. Smt. Pushpa did not remain content and so she again preferred objection under sec. 47 C. P. C. on 22nd of Feb, 1974 inter alia on the ground that the decree was not executable as no money was due under the decree and further that the house in question was not liable to attachment. This objection petition was also dismissed by the executing court on 12-7-74. THEreafter Smt. Pushpa again filed objection under sec 47 C. P. C. on 27th of August, 1974 on the ground that the decree under execution being a partition decree and it having not been engrossed on a stamp paper as required by Article 45 of the Stamp Act could not be executed. This objection was also rejected by the executing court holding that the decree was not a partition decree but a simple money decree and that the same did not require to be stamped. Being aggrieved Smt. Pushpa filed appeal before the learned District Judge which too was dismissed by him by his judgment dated August 8, 1975. Pushpa therefore filed second appeal before this Court. THE appeal came up before Modi J. During the pendency of appeal the decree holder submitted stamp papers on 20th of February, 1976 whereupon the appeal was withdrawn and the same was dismissed as withdrawn. Meanwhile the house of the judgment-debtor was put to auction and the auction was knocked down in favour of the decree-holder-respondents on 30th of January, 1976, and the case was posted for the confirmation of the sale. In the mean time Smt. Pushpa filed another objection wherein she contended that as the stamp papers were submitted on 20th February, 1976 therefore the decree which was in essence a decree for partition could not have been executed and the auction of house pursuant to such a decree was without jurisdiction. THE objection was turned down by the executing court. This order of executing court was challenged by way of appeal which was dismissed by the learned Additional District Judge No. 1, Jodhpur on 31st of January, 1977. It is against this judgment and decree of the learned Additional District Judge No. 1, Jodhpur that Smt. Pushpa has come up in second appeal to this court.

(3.) REFERENCE may also usefully be made here to the recent decision of the Supreme Court reported as Premlata vs. Lakashman Prasad (9 ). In that case there was stay of execution procecdings. On 13th May, 1950 the execution proceedings were revived. The judgment-debtors impeached the sale only on a ground covered by the UP. Encumbered Estates Act, 1934. The judgment-debtor, however, in that case did not challenge the order of the Civil Judge at Allahabad reviving the execution proceedings attaching the Jhusi Sugar Mills and directing the sale of the sugar mill as barred by limitation, It was held by the Supreme Court that the principle of res judicata applies to execution proceedings and as the judgment-debtor in that case did not raise any objection as to revival of the execution proceedings before the Civil Judge Allahabad the judgment-debtors are barred by principle of res judicata from questioning directly or indirectly the order reviving the execution proceedings.