Madhya Pradesh High Court
Shiv Autar And Anr. vs Hariom And Ors. on 5 February, 2007
Equivalent citations: AIR2007MP130, AIR 2007 MADHYA PRADESH 130, 2007 (4) ALL LJ NOC 588, 2007 (4) AKAR (NOC) 434 (MPG), 2007 A I H C (NOC) 384 (MP), (2007) 54 ALLINDCAS 800 (MPG), (2007) 2 CURCC 319, (2007) 3 CIVILCOURTC 35, (2007) 2 MPLJ 224, (2007) 2 MPHT 165
ORDER S. Samvatsar, J.
1. Shri Rajendra Sagoria, Advocate, for the petitioners.
2. Shri Vinod Bhardwaj, Advocate, for the respondents.
3. This petition is filed by the petitioner who is one of the decree holders challenging the order dated 18-10-2004 passed by Civil Judge, Class-I, Ambah in Execution Case No. 11A/74 x 2004 whereby the Court has rejected an application filed by the present petitioner for issuing warrant of possession in favour of the petitioner alone.
4. The brief facts of the case are that the suit was filed by plaintiffs against respondent No. 3 for possession of a property in which a decree was passed by the trial Court on 14-7-1987. This decree was confirmed by the first appellate Court on 22-12-1992 and was confirmed by the High Court by judgment dated 11-4-1997 and thus, the decree of possession has attained finality.
5. The decree was put to execution and in execution proceedings, present petitioner has filed an objection alleging that the warrant of possession should be issued in favour of the present petitioner alone. This application was opposed by respondents Nos. 1 and 2 who are co-decree holders on the ground that as there is a joint decree, hence, warrant of possession should not be executed only in favour of the present petitioner and should be jointly issued in favour of all the three.
6. The application filed by the present petitioner is dismissed on the ground that it is beyond the scope of Section 47 of CPC.
7. The contention of the learned Counsel for the petitioners is that as the present petitioner was also a party to the suit as heir of the deceased Ramprasad, he is the party to the suit and therefore the dispute between him and respondent No. 1 can be determined under Section 47 of CPC.
8. Section 47(1) provides that all the questions arising between the parties to the suit in which a decree was passed or their representatives and relating to execution discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. Sub-section (3) further provides that 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.
9. The contention of the learned Counsel for the petitioner is that as the present petitioner is covered by Sub-section (3) of Section 47, CPC the present dispute is covered by Section 47 and the executing Court has committed an error in not deciding the said dispute. In support of this argument, learned Counsel for the petitioner relied on the judgment of Nagpur High Court reported in AIR 1949 Nagpur 398.
10. In reply to this argument, learned Counsel for the respondents pointed out that an explanation is added to Sub-section (3) of Section 47, CPC w.e.f. 1-2-1977 and explanation No. 1 clarifies that for the purposes of Section 47 parties remain the plaintiff and the defendant, and the dispute between the co-plaintiff or co-defendants is not covered by Section 47. He relied on the judgment of Apex Court in case of Jagdish Dutt v. Dharma Pal and para 7 of the said judgment, the Apex Court has laid down that a joint decree can be executed as a whole since it is not divisible and it can be executed in part only where the share of the decree holders are defined or those shares can be predicated or the share is not in dispute. Otherwise, the executing Court cannot find out the shares of the decree-holders and dispute between joint decree holders is foreign to the provisions of Section 47, CPC.
11. Thus, it is clear that the dispute between the co-plaintiff or co-decree holders is not covered by Section 47 and decree will have to be executed as a whole.
12. So far as dispute between co-decree holders are concerned, they have a separate remedy under the law which they can avail. But such dispute cannot be decided in execution proceedings against a judgment-debtor and not concerned with the said dispute.
13. Thus, this petition is without any merits and is dismissed.