The executing court has limited power to determine objections raised under Section 47 of the CPC and cannot stay the execution of a decree affirmed up to the second appeal merely by admitting an objection without prima facie satisfying itself that the objections have substance and require consideration.

M.Y.Eqbal, J.

1. This revision application is directed against the order dated 27.2.98 passed by Sub-Judge-2, Patna City in Misc. Case No. 2/98 arising out of Execution Case No. 5/90 by which he admitted the aforementioned misc. case filed by the judgment debtor opposite parties and stayed the execution of the decree in execution case 5/90 till the disposal of the misc. case. The operative portion of the impugned order passed by the Court below reads as under:

Perused the petition for miscellaneous case. In this petition some legal and factual grounds have been mentioned that can be considered only if miscellaneous case is admitted and both parties are given opportunity to place their case. Sec. 47 of the Code of Civil Procedure is also clear that all questions arising between the parties to the suit in which the decree was passed and relating to the execution shall be determined by the. Court executing the decree and not by a separate suit. Here, the applicant has raised questions of law and facts which requires determination. Therefore, considering the entire matters this miscellaneous case is admitted and Execution Case No. 5/90 is tayed till disposal of this miscellaneous case.

2. Mr. Ram Balak Mahto, learned Counsel appearing for the petitioners assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel firstly submitted that the Court below has illegally and erroneously admitted the misc. case filed by the judgment debtor under Sec. 47 of the C.P.C. without applying his judicial mind. Learned Counsel then submitted that the objections raised by the judgment debtor in the misc. case are not new one rather all those objections were taken by way of defence in the written statement in the suit-filed by the petitioner seeking a decree for eviction, The suit was decreed. The judgment debtor then filed first appeal No. 62/90 in this Court and the said appeal was also dismissed. The petitioners then filed Letters Patent Appeal which too was dismissed. The judgment debtor thereafter filed objections under Sec. 47 of the Code of Civil Procedure challenging the execution of the decree on the same grounds which have been rejected by this Court up to L.P.A. Learned Counsel submitted that all these facts have not been considered by the Court below while admitting the misc. case and staying the execution of the decree.

3. Mr. Tarkeshwar Dayal, learned Counsel appearing for the opposite party, on the other hand, refuted the argument advanced by Mr. Ram Balak Mahto and submitted that the validity of the decree can be challenged at any stage of the execution proceeding by filing objection under Sec. 47 C.P.C. and the Court is bound to dispose of/the objection after hearing the parties. Learned Counsel then submitted that when the decree for eviction was not passed against the Company who is the tenant then the said decree cannot be executed against it.

4. Before appreciating the rival contentions made by the learned Counsels appearing for the parties, it would be useful to look into the facts of the case. I have the occasion to go through the pleading of the parties, copies of which have been supplied to me by the learned Counsels. From perusal of the plaint it appears that the petitioners filed Eviction Suit No. 95 of 1986 against Smt. Snehlata Singh as defendant No. 1 and Kunwar Ayurvedic Pharmacy through Smt. Snehlata Singh as defendant No. 2. In the plaint the plaintiffs case was that the defendant No. 1 is month to month tenant in the suit premises on a monthly rental of Rs. 325.00 . Defendant No. 1 was giving rent in the name of defendant No. 2 and accordingly whenever the rent was paid, rent receipt was granted in the name of defendant No. 2. A joint written statement was filed by the defendants 1 and 2. In paragraph 4 of the written statement the following facts have been pleaded:

That the suit is bad for mis-joinder of parties. It is submitted that Kunwar Ayurvedic Pharmacy Pvt. Ltd. thr