J U D G M E N T

The original petition is filed challenging the order in E.A.No.17/2019 in E.P. No.21/2018 O.S. No.166/1994 (Ext.P6) passed by the Court of the Subordinate Judge, Cherthala.

2. The petitioners’ case, in the nutshell, in the memorandum of the original petition, is that; the first petitioner is a duly registered co-operative society formed for the implementation of the welfare projects of the Scheduled Caste community. Respondent Nos.1 and 2 had filed Ext.P1 plaint, inter alia, seeking a decree for partition and recovery of possession. The first petitioner was the third defendant in the suit. In Ext.P1 plaint, the respondents 1 and 2 had shown the first petitioner to be represented by its Chairman, instead of its Secretary. It was later that the Secretary came to learn that the decree was passed and Ext.P2 execution petition was filed to execute the decree. Immediately, the second petitioner, the present Secretary of the first petitioner, filed Ext.P4 application to implead him as the representative of the first petitioner in the execution petition. He also filed Ext.P3 application, to keep the delivery in abeyance and Ext.P5 application, under Section 47 of the Code of Civil Procedure, 1908(in short, ‘C.P.C.’), to declare the decree a nullity and unenforceable. However, without adverting to Ext.P5 application in its correct perspective, the court below has passed Ext.P6 order. Ext.P6 order is erroneous and wrong. Hence, the original petition.

3. Heard; Sri. K.P. Shibi, the learned counsel appearing for the petitioners and Sri. Adarsh S., the learned counsel appearing for the respondents 1 and 2 on the question of admission of the original petition.

4. The point that arises for consideration is whether there is any error in Ext.P6 order?.

5. Ext.P1 plaint was filed against the first petitioner society, which was shown to be represented by its President. The petitioners have maintained stoic silence in the original petition as to whether they had received the summons or had contested the suit. They have also not produced the judgment and decree pronounced in the suit. Nonetheless, as reflected from Ext.P6 order, the petitioners had through its President filed FAO No.15/2010 before this Court. So, therefore, it is only to be assumed that the President was competent to represent the first petitioner. Even otherwise, it was the bounden duty of the first petitioner to have contested the suit on its original side and raised the objection that the first petitioner was not properly described and represented in the plaint. After keeping silent for all these years, it is untenable for the petitioners to now contend that the decree is a nullity on the ground the first petitioner was shown to be represented by its President, instead of its Secretary. Hence, the petitioners want the decree to be declared a nullity under Section 47 of the C.P.C. 6. Section 47 of the C.P.C. Section 47 of the C.P.C. reads as follows:

47. Questions to be determined by the Court executing decree.—(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

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(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

2[Explanation 1.—For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II—(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relatin