Ithack Isaac and Others vs Krishna Kurup Krishna Kurup and Others

M.S. Menon, J.—Plaintiff 3 in O.S. No. 148 of 1096 of the District Court of Kottayam assigned his rights under that decree to the Appellant on 5th Dhanu 1120 and they filed a joint petition for execution on 1st Thulam 1122 on the basis of the said assignment. Plaintiff 3 died thereafter and Respondents 1 to 4 (members of his tarwad) filed an application - C. M. P. No. 505 dated 26th Chingain 1124 before the District Court of Maveiikara where the decree was pending execution for being impleaded as the representatives of Plaintiff 3. That application was allowed and hence this appeal.

The contention of Respondents 1 to 4 is that the rights of Plaintiff 3 under the decree in O.S. No. 148 of 1096 were really those of his tar wad and that u/s 47 CPC 1908, they are entitled (and bound) to have the matter agitated in the execution proceedings themselves and not by way of a separate suit.

We cannot agree. In view of the assignment in favour of the Appellant and the joint application filed thereafter we do not see any reason whatsoever for bringing Respondents 1 to 4 on record in these proceedings. Whatever contentions they have can and should be agitated by way of a separate suit and not in the manner they have proposed to do.

As pointed out by Ghitaley Code of Civil Procedure, Vol. 1, page 569):

The words for the purposes of this Section in Sub-section (3) (of Section 47) clearly show that Sub-section (3) is not independent of but is ancillary to Sub-section (I) and therefore comes into operation only when there is a question arising between the parties to the suit or their representatives relating to the execution, discharge or satisfaction of the decree. It does not therefore, apply to a case in which the question is between rival representatives of one party, the other party not having any interest in the question.

The position is summed as follows in Rama Maruti Chaugule Vs. Mallappa Krishna Chaugule, .

under Sub-section(3) of Section 47 CPC 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. There is a distinction between a dispute between two rival heirs of a deceased party in which the other party is not interested and a dispute between a person claiming to be the heir of one party and the other party who disputes the right of that person as such heir. It has been held by our Court in Venubai v. Damodar, 35 BOM LR 609 : AIR 193S Bom 396 that Sub-Section 3 of Section 47 does not apply when the dispute is between rival representatives of one party, the other party having disclaimed any interest in the question.

The lower Court''s order is, therefore, clearly in error and the appeal has to be allowed. We allow the appeal with costs.