This Civil Revision has been filed against the order dated 06.09.2013 passed by learned Sub Judge-I, Giridih in Execution Case No.05 of 2013 by which the learned Sub Judge-I has been pleased to reject the petition filed by the petitioner under Section 47 of the Code of Civil Procedure.

2. It is submitted that a petition under Section 47 of the C.P.C. was filed by the petitioner before the Court of Sub Judge-I, Giridih and the learned Court instead of registering miscellaneous case as required under Rule 459 of the Civil Court Rules, summarily rejected the petition by making endorsement on the petition itself. The endorsement so made on the petition was down in the order sheet dated 06.09.2013. The endorsement made by the Court on the petition itself indicates that the Court has not applied judicial mind and hurriedly passed the impugned order without applying judicial mind. The petitioner was not given opportunity to adduce evidence and documents. It was contended before the executing court that the share of judgment debtor no.2 Santosh Kumar Sharma has not been indicated. He has not been made party to the execution proceeding and without indicating share of judgment debtor no.2 Santosh Kumar Sharma, the decree was not possible to be executed and that is why petitioner has raised objection under Section 47 of the C.P.C. The learned counsel relied on the judgment in the case of Mangal Dass (deceased by L.Rs.) V. S.S. Sandhu & Ors. Reported in AIR 1990 Punjab & Haryana 91 and submitted that if a petition is filed under Section 47 of the C.P.C., it is incumbent duty of the Court to register it as a miscellaneous case and opportunity should be given to adduce evidence in support of the objection raised. Petition under Section 47 of the C.P.C. is not required to be rejected summarily. He has further relied on the judgment in the case of Gopal Prasad V. Baushidhar Singh & Ors. reported in AIR 2000 Patna 240 in which petition under Section 22 of the Hindu Succession Act was filed and it was not properly dealt with and hence Hon'ble Court held that every objection, if filed, in execution proceeding that is to be decided after registering miscellaneous case and also after giving opportunity to the parties to adduce evidence. There is no need to register a separate suit. The learned counsel has further submitted that without assigning cogent reason petition filed under Section 47 of the C.P.C. has been rejected by the learned Sub Judge and therefore, impugned order is liable to be set aside. Last but not least, it is submitted that after giving time frame, matter may be remanded to the lower court with a direction to register miscellaneous case and after giving opportunity to the parties proper order may be passed.

3. On the other hand, learned counsel appearing for the opposite party nos.1 to 3 (plaintiffs) has submitted that the judgment debtor no.1 is in habit of filing petition one after another with an intention to delay execution process and that is clearly reflected in the impugned order. On 27.05.2013 petition under order XXI Rule 29 was filed and it was rejected on 30.05.2013 after granting opportunities to the parties but the petitioner has not chosen to challenge the said order before any superior court. Again he has filed show cause on the very same date i.e. 30.05.2013 and it was also dismissed. Thereafter, petition under Section 47 of the C.P.C. was filed on 06.09.2013 which is under challenge.

4. It is further contended that the partition suit no.46 of 2004 was filed by opposite party nos.1 to 3 (plaintiffs) and in the said suit petitioner was made as defendant no.1. The suit was decreed on 28.11.2005 and preliminary decree was sealed and signed on 13.12.2005. The litigation between the parties went upto the Hon'ble Supreme Court and lastly final decree for partition was sealed and signed on 19.12.2012. The petition filed by the opposite party nos.1 to 3 for execution is very clear and it is mentioned in Column(i) that