Section 47 of the Code of Civil Procedure restricts challenges to the executability of decrees, asserting that only the decree's legitimacy can be contested in appropriate forums, not through execution proceedings.

JUDGMENT

Dated : 30th July, 2021

1. Petitioner is the decree-holder in E.P.73 of 2007 in O.S.153 of 2002 of Sub Court, Attingal. This original petition has been filed against the order in E.A.229 of 2011 in the above stated E.P. dated 7.1.2016 by which petition filed under Sec.47 of the Code of Civil Procedure, 1908 , to set aside the sale was allowed.

2. O.S.153 of 2002 is a Suit for money. As per the decree in O.S.153 of 2002 copy of which is produced as Ext.P1, the petitioner/Decree Holder/plaintiff was allowed to realise an amount of Rs.1,25,220/- with interest on the original amount of Rs.1,20,000/- at the rate of 6% per annum charging the decree schedule properties. The Suit was filed after the death of the debtor against the legal representatives who are his mother, wife and children. Against Ext.P1 decree, appeal was preferred as A.S.16 of 2011 by the respondent herein, the 3rd judgment-debtor and 5th judgment-debtor(her minor brother) in the E.P. and copy of the appeal memorandum is marked as Ext.P2. In the appeal the challenge was that item No.2 in the decree schedule property is not liable to be proceeded for the debt of the original defendant as it is not a property inherited by the legal representatives of the debtor. The specific contention in the appeal was that the property belonged to the wife of the debtor who is her mother. No stay of the execution proceedings was granted by the Appellate Court in Ext.P2 appeal since there was delay in filing the appeal. Hence the respondent here in filed O.P.(C).397 of 2011 before this Court for stay pending consideration of Ext.P2. But as per the judgment dated 3.12.2012, this Court dismissed the said O.P for default since the delay petition pending before the District Court was dismissed and accordingly Ext.P2 appeal was also dismissed , copy of which is marked as Ext.P3 . So the challenge with regard to the liability over item No.2 property was concluded by the dismissal of Ext.P2 appeal. The petitioner carried the decree in execution and the properties were brought for sale and it was purchased by the petitioner and item No.1 of the decree schedule was delivered to the petitioner/decree holder. But E.A.229 of 2011 was filed by the respondent on the very same grounds to set aside the sale of item No.2 of the decree schedule properties. The true copy of that E.A. has been produced as Ext.P4. By Ext.P5 order the Sub Court, Attingal allowed Ext.P4. Against which this Original Petition has been filed.

3. Notice was issued to the respondent/petitioner in E.A.229 of 2011. Adv.K.P.Sujesh Kumar appeared on behalf of the respondent and both sides were heard.

4. The point for consideration is, whether the impugned order setting aside the sale with respect to item No.2 property, in a petition filed under Sec. 47 of the Code of Civil Procedure, 1908 (in short the Code) is legally sustainable or not.

5. Admittedly the petitioner, her mother, grandmother and siblings were parties to the Original Suit and also in the execution proceedings. The Suit was decreed allowing the petitioner/decree holder (hereinafter be referred as the petitioner) to realise the decree amount charging the plaint schedule properties devolved upon the respondent along with other defendants from deceased Venu. Ext.P1 decree copy would prove unequivocally that a charged decree was passed with respect to plaint schedule item Nos.1 and 2 properties which are said to have been devolved upon the defendants/judgment debtors from deceased Venu. Now the contention of the respondent is that item No.2 property belonged to her mother and for the liabilities of the father the plaint item No.2 property ought not have been made liable or charged. In the impugned order it has been found by the learned Sub Judge that the certified copy of the sale deed pertaining to item No.2 property has been produced and marked as Ext.A1 and it would reveal that item No.2 property is owned by the second defendant, the wife of deceased Venu an