A third party not involved in the original suit lacks standing to object to the execution of a decree under Section 47 of the Civil Procedure Code.

JUDGMENT :

Heard. RULE. Heard finally with the consent of the learned Counsel for the parties.

2. The petitioner is aggrieved by the order dated 18-04-2019 passed by the learned Civil Judge, Junior Division (for short- “CJJD”) Morshi, below Exhibits 42 and 55 in RD. No. 47/2013, thereby rejecting the objection (Exhibit No.42), and the application for appointment of the commissioner (Exhibit No.55) filed by the petitioner has preferred this petition.

3. In brief, the facts are as under:

(a) The respondent/original plaintiff filed suit against the tenant, Devidas Sheshrao Umale, for recovery of possession of the suit plot and arrears of rent. The suit was proceeded ex parte, and accordingly, on01-01-2013, ex parte decree was passed.

(b) Pursuant to the decree, the respondent had filed execution proceedings before the learned Trial Court. During the pendency of the said execution proceedings, on 23-12-2016, the petitioner/objector moved an application under Section 47 of the Civil Procedure Code (for short, “CPC”), thereby seeking the relief to quash and set aside the ex parte decree passed on 01-01-2013 in Regular Civil Suit No.74/2012 as well as declare that the said ex parte decree was obtained by fraud by the respondent and, therefore, same is not binding on him.

(c) Similarly, the petitioner moved an application under Order XXVI Rule 9 of the CPC to appoint the court commissioner to inspect the property in question. The respondent resisted both applications. After hearing both parties, the trial Court rejected both applications by a common order, holding that the petitioner was neither a party to the suit nor a representative of either of the parties to the suit. Therefore, he cannot take objection to the execution of the decree, and hence, filing the objection under Section 47 of the CPC is not tenable.

Being aggrieved by the same, the petitioner/original objector/third party has preferred this petition.

4. Mr. C.B. Dharmadhikari, learned Counsel for the petitioner, vehemently contended that since 1998, the petitioner has been in possession of the suit property as a tenant. However, the respondent has not issued any receipt for the payment of the rent to him; so also, the respondent has not made the petitioner a party to the suit when the petitioner has been in possession of the suit property. Therefore, he submitted that by playing fraud by the respondent and the judgment- debtor upon the Court, the ex parte decree was obtained. Hence, the petitioner intends to object to challenge the ex parte decree.

5. He further pointed out paragraph No.10 of the impugned order and contended that the trial Court had not considered the ratio laid down in the judgment cited before it and erred in observing that the facts in the cited judgment are different than the case at hand and, therefore, the said findings cannot be sustained in the eyes of the law. Per contra, the petitioner possesses the suit property and, thus, is entitled to raise an objection. Hence, he submitted that the said findings are liable to be set aside.

6. He further canvassed that the nomenclature of the section in the application would not affect the rights of the petitioner to object to the decree. Hence, he submitted that the passing of the order is contrary to the facts on record.

7. To buttress his submission, he has relied on the judgments of the Hon’ble Apex Court in the cases of Shreenath and Ors. v. Rajesh and Ors. reported in AIR 1998 SC 1827 and Asgar and Ors. v. Mohan Varma and Ors. reported in 2019(133) ALR 736. He has drawn my attention to paragraphs Nos.5 and 12 in the case of Shreenath and submitted that in view of the dictum laid down in both the judgments, the petitioner, being the possessor and tenant of the suit plot, is entitled to object to the decree in execution proceedings. However, the Trial Court has not considered the same and erred in holding that the facts in the said judgment are different than the case at hand. Therefore, he has submitted that the