Damyantibai vs Trimbak

A.I.S. Cheema, J.—Admit. Heard learned counsel Shri Tare for the Applicant, Shri S.J. Salunke, learned counsel for Respondent No.1 and Shri K.J. Ghute Patil, learned A.G.P. for Respondent Nos.2 to 4. Perused the material placed on record. The matter is heard finally.

Civil Revision Application has been filed against orders dated 7th July 2012, passed below Exhibit 27 in Regular Civil Suit No.237 of 2012 by the 5th Joint Civil Judge, Senior Division, Osmanabad. The said Application was filed by the present Applicant, who is defendant No.1 in that suit. It was claimed that the original Plaintiff (present Respondent No.1) had played fraud on the Court and obtained orders. It was claimed that the original Plaintiff had moved the proceedings of M.A. No.36 of 2003 in Regular Darkhast No.32 of 1999, which was rejected. The present Applicant claimed that the sale deed concerned was void and that the suit was not tenable as per Section 47 of the Code of Civil Procedure, 1908 ("C.P.C." for short).

The Application was rejected and hence the present Revision has been filed.

Learned counsel for the Applicant submits that earlier there was Regular Civil Suit No.98 of 1982 for partition and separate possession and when the suit was decreed in the trial Court, the present Applicant was granted 1/8th share. An Appeal was carried as Regular Civil Appeal No.100 of 1990 and her share got enhanced to the extent of 1/6th. It has been submitted that when the Appeal was pending, sale deed dated 23rd July, 1993 came into existence between present Respondent No.1 and Applicant. Learned counsel says that the sale deed is fraudulent. According to him, as per the sale deed, 1/8th share (which has been decided in the trial Court) got transferred. Learned counsel submits that after the disposal of Appeal, Regular Darkhast was filed as Regular Darkhast No.32 of 1999 and the present Respondent No.1 moved Civil Misc. Application No. 36 of 2003 to quash the execution proceedings, but the same came to be rejected. Learned counsel says that present Regular Civil Suit No.237 of 2012 came to be filed thereafter and in the said suit the Respondent No.1 has prayed that Judgment and decree passed in Regular Civil Appeal No.100 of 1990 is not binding on him. Learned counsel submits that questions relating to execution are to be decided in the Darkhast itself.

Learned counsel for Respondent No.1 is submitting that Respondent No.1 was not party to the earlier litigation and he is purchaser when the first appeal was pending. Thus, according to him, Section 47 of C.P.C. does not apply and the claim of the Applicant that the suit is not maintainable, cannot be accepted.

Section 47 of the CPC reads as under:

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.

(2) (Omitted)

(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.

[Explanation I. 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 relating to the execution, discharge or satisfaction of the decree within the meaning of this section.

Clearly, the dispute regarding the sale deed between the Applicant and Respondent No.1 is not question which was subject matter of litigation in the earlier suit. Section 47 of C.P.C. is quite clear and it says that, all questions arising "between the parties to the suit", are to be determined by the Court executing the decree and not by a separate suit. Admittedly, present Respondent No.1 was not party in the earlier litigation in the trial Court or the first appellate Court. It is not claimed that Respondent No.1 is prosecuting the present suit in a representative capacity of any of the litigants of the earlier suit. In view of this, there does not appear to be any substance in the Revision Application which has been filed in this Court.

For the reasons stated above, Civil Revision Application is rejected.