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APARESH KUMAR SINGH
Sefali Datta, W/o Late Dinabandhu Datta – Appellant
Versus
Kananbala Dey @ Deb, W/o- Sri Dinesh Chandra Dey – Respondent
JUDGMENT & ORDER (ORAL)
Mr. Aparesh Kumar Singh, CJ. - Heard Mr. Samarjit Bhattacharjee, learned counsel for the petitioner and Mr. S.M. Chakraborty, learned senior counsel assisted by Mrs. P. Chakraborty, learned counsel for the respondents.
2. Petitioner is the Proforma Defendant No.4 in Title Suit Partition No.29 of 2017 who contested the suit by filing written statement apart from the Defendant No.1, but no decree was passed against the present petitioner by the learned Trial Court vide judgment dated 25.10.2017 and decree dated 19th September, 2018. The operative part of the judgment and decree reads as under :
'In the result, the suit of the plaintiff is decreed without cost as this is a partition suit and it is hereby declared that the plaintiff and defendant No.2 are owner of 0.22 acre each and defendant No.1 is the owner of 0.19 acre of the suit land as described in the schedule 'B' of the plaint.
Accordingly, the plaintiff and defendant No.1 & 2 are directed to amicably partition the suit land described in schedule 'B' of the plaint by metes and bounds within 30 days from today and failure to which any of them may move this court on the next date fixed for final partition of
A proforma defendant without a decree cannot object to execution proceedings, affirming the requirement that issues must be raised during trial, not execution.
The executing court must determine questions arising between parties to the decree without modifying it, and procedural irregularities should not defeat substantive rights.
The main legal point established in the judgment is the limited scope of scrutiny under Section 47 of the CPC, emphasizing that objections to the executability of a decree can only be entertained if ....
Execution of joint decrees remains valid even with subsequent transfers of interest by decree-holders, and a judgment-debtor cannot escape execution by claiming ownership.
A partition suit can be maintained despite a prior decree obtained by fraud when necessary parties were not included, reaffirming the rights of Class 1 heirs under the Hindu Succession Act.
Point of law: If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-h....
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