MOST MADHURI DEVI Vs. MOST SUNDARI MAHATAIN

JUDGEMENT

(1.) Aggrieved by order dated 05.12.2014 in Misc. Case No. 22 of 2013, the petitioners have approached this Court by filing the present writ petition.

(2.) The Title (Partition) Suit No. 25 of 1998 was filed by one Padum Chandra Mahato. In the partition suit one Lakhiram Mahato was the sole defendant. The suit was decreed on 10.05.2000 against which, Title Appeal No. 21 of 2000 was preferred by the original defendant. The Title Appeal No. 21 of 2000 was dismissed on 20.09.2002 and it appears that after the dismissal of the title appeal, the original defendant died. The petitioners are legal heirs and successors of the plaintiff and they are the decreeholders. One Most. Sundari Mahatain claiming herself wife of the original defendant namely, Lakhiram Mahato filed the petition for preparation of final decree. On the application dated 16.06.2004 filed on behalf of the said Most. Sundari Mahatain who is respondent in the writ petition, the proceeding for preparation of final decree commenced however, it proceeded exparte and final decree was prepared on 19.02.2007. Thereafter, the said Most. Sundari Mahatain filed an application which was registered as Execution Case No. 20 of 2010, in the proceeding of which Pleader Commissioner submitted a report. It appears that at this stage, an application under Section 47 CPC was filed on behalf of the petitioners which was registered as Misc. Case No. 22 of 2013. The application under Section 47 CPC has been dismissed on 05.12.2014.

(3.) The learned counsel for the petitioners submits that the final decree dated 19.02.2007 was prepared in the absence of the petitioners and the petitioners had no knowledge of the same. It is further submitted that a challenge to the status of the applicant namely, Most. Sundari Mahatain was raised by the applicants/petitioners in application under Section 47 CPC however, without taking evidence, the trial court has held that the respondent namely, Most. Sundari Mahatain is the legally married wife of deceased Lakhiram Mahato. Relying on a decision in "M/s Century Textiles Industries Ltd. vs. Deepak Jain and another, 2009 3 JLJR 153" (SC) the learned counsel for the petitioners submits that the question which may arise between the parties to a suit must be decided by the executing court and for adjudicating those questions separate suit is not required to be filed. It is submitted that in the "M/s Century Textiles Industries Ltd." case, identity of judgment debtor was questioned and it has been held by the Hon'ble Supreme Court that such question can decided by the trial court.