PUSHPALATA Vs. SNEH LATA GOEL

JUDGEMENT

(1.) The petitioner, who was defendant no. 3 in Partition Suit No. 154 of 1985, is aggrieved of order dated 10.03.2016 by which her application under Section 47 CPC objecting to execution of the decree on the ground of lack of territorial jurisdiction of the Ranchi court has been rejected.

(2.) Stand taken by the petitioner is that an issue which was not conclusively decided at any stage, more precisely objection to jurisdiction of the Ranchi court, can be adjudicated in the application under Section 47 CPC and the executing court cannot declare that the petitioner - judgement-debtor has no right to file an application under Section 47 CPC.

(3.) Briefly stated, Partition Suit No. 154 of 1985 was instituted by Smt. Saroja Rani for a preliminary decree for partition to the extent of ' share in schedule 'B' and schedule 'C' properties. The petitioner was made defendant no. 3 in the partition suit. The plaintiff in the partition suit is the daughter of late Rai Sri Krishna and the defendant nos. 2 and 3 are her own sisters whereas defendant no. 1 is her mother. The defendant nos. 1 and 3 and the defendant no. 2 have filed their separate written statements. But, after filing their written statements the defendants did not appear in the partition suit and the suit was decreed ex-parte. A preliminary decree was prepared on 106.1990 which has been challenged by the petitioner in First Appeal No. 43 of 2015. Execution Case No. 07 of 1992 was levied for execution of the preliminary decree prepared in Partition Suit No. 154 of 1985, however, the execution case was dismissed in default on 15.01.2009 and it is stated that the application for restoration of the execution case has also been dismissed. In the meantime, defendant no. 1 died on 09.02.1996. After death of the plaintiff's mother, a second final decree has been prepared on 18.12.2013 and thereafter a second execution case vide Execution Case No. 5 of 2014 has been levied by the defendant no. 2.