R.S. Garg, J.

1. The applicant/judgment-debtor being aggrieved by the order dated 20.2.1998 passed by the learned Civil Judge Class I, Chhindwara in Execution Case No. 2/97 over-ruling the objections filed by the applicant/judgment-debtor, has filed this petition under Section 115, C.P.C.

2. Undisputedly on 23.9.1996 in Civil Suit No. 12-A/94 between the non-applicant No. 1 /plaintiff on one side, and present applicant and non-applicant Nos. 2 and 3/defendants on the other side, the suit was decreed in favour of plaintiff Laxmibai inter alia directing the plaintiff Laxmibai is entitled to 1/4th share in the house. The Court also directed that the plaintiff is entitled to seek partition by metes and bounds. No challenge was made to the said ex-parte judgment and decree, and the final decree proceedings started. In the final decree proceedings, the property that is the dwelling house was put for partition and the same was partitioned in four equal shares. The present applicant raised an objection under Section 23 of Hindu Succession Act inter alia pleading that the plaintiff/decree-holder being a female heir of deceased Sitaram was not entitled to seek partition of dwelling house. It was also pleaded that while the partition proceedings were going on, personal properties belonging to present applicant were also included in hotchpot and the property was illegally partitioned. The learned Trial Court over-ruled the objection observing that such an objection regarding applicability of Section 23 of Hindu Succession Act could not be raised in the final decree proceedings, and also over-ruled the other objection inter alia observing that all the persons who had shares in the property have appended their signatures to the partition sheet, therefore, such objection would not be available to the judgment-debtor.

3. Mr. Kochar learned Counsel for the applicant submits that a simple perusal of Section 23 of the Act would clearly show that a woman/female heir is not entitled to claim partition of dwelling house if the members of the family are residing in the said house. According to him, Section 23 puts an absolute bar to the right of a woman from claiming a partition because such woman is entitled to a right of residence only.

4. Mr. Lalwani, learned Counsel for non-applicant No. 1, on the other hand, submits that Section 23 in its terms would not be applicable to the present case and the Court below was justified in rejecting the objection.

5. For proper appreciation of the controversy between the parties, it is necessary to refer to Section 23 of Hindu Succession Act. Said section reads as under:

"Special provision respecting dwelling house-Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class 1 of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, they, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein :

Provided that where such heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow."

6. Pre-condition for application of Section 23 is that a Hindu intestate has left surviving him or her both male and female. The reason for putting a ban on the right of a woman to claim partition of dwelling house apparently is that she may not create problems to the members of the family or may not compel them to come out of the house if the house is partitioned or is sold under the provisions of Indian Partition Act. Undisputedly in the present case deceased Sitaram died intestate and did not leave male heirs. He was succeeded by plaintiff Laxmibai only. The submission of learned Counsel for the