1987 Supreme(MP) 588

IN THE HIGH COURT OF MADHYA PRADESH
B.C. Varma, J.
Smt. Gulabrani – Appellant
Versus
Vijay Singh – Respondent
C.R. No. 402 of 1987 (J)
Decided On : 16-11-1987

Headnote:(1)Civil Procedure Code, 1908 – S. 47, O. 21, R. 99, 100 and 101 – decree for possession – objection as to independent claim cannot be raised u/s. 47 – objector can proceed after possession is handed over.

       (2)Civil Procedure Code, 1908 – S. 50 – decree – can be executed against legal representatives without bringing them on record.

        Short Note

       1. Non – applicant Vijay Singh obtained a decree for specific performance to sell a house in question on 12.3.1977. Judgment debtor was Ramdas (deceased). During his life the decree was put into execution. Notice was issued to Ramdas to execute the Sale – deed. Ramdas did not turn up in response to the notice before the executing Court and that Court executed the sale – deed in favour of the decree holder/plaintiff and got it registered. This deed was registered on 30.4.1984. Thereafter, the decree holder attempted to take possession of the property. When this was being done, some of the applicants came forward and objected to the decree of possession and also to the execution of the sale – deed by the Court. Their objection is that without bringing legal representatives of deceased Ramdas on record, the decree could not be put into execution and the sale – deed could not be executed. Their further objection was that they have interest into the property and that interest independent of the judgment debtor Ramdas could not have been represented by him and, therefore, decree does not bind them to the extent of their share in the property. By the impugned order, both these objections have been rejected. Hence, this revision.

       2. It is worth mentioning that the objection by the applicants before executing Court was filed under section 47 of the Civil Procedure Code. It was their case before the executing Court and also is the case here that they do not claim title under the judgment debtor. Instead they claim title independent of him. That being so, they can offer resistance to the execution of the decree but cannot attack the decree as void or inoperative or not capable of execution. They claim to have interest into the property independent of the judgment debtor and if the decree holder executes the decree against them and secures possession, they may then proceed in accordance with the remedy under Rule 99, 100 and 101 of the Civil Procedure Code. In no case, however, such an objection could be permitted to be raised by application under section 47 of the Civil Procedure Code.

       3. The decree could be executed without bringing the legal representatives of the deceased – judgment debtor on record. I have earlier stated that the decree was put into execution during life time of the judgment debtor who was noticed to execute the sale – deed as required. Learned counsel for the petitioners was unable to point out any provision of the law which requires legal representatives to be brought on record before the decree could be executed. Instead section 50 of the Civil Procedure Code permits execution of the decree against the legal representatives of any judgment debtor without their being brought on record. If any authority is needed, it may be found in Budh Singh and Others vs. 8th Additional District Judge Meerut and Others, AIR 1986 All. 49. That being the position this objection has also rightly been rejected by the Court. AIR 1986 All. 49 relied on. Revision dismissed.