S.C. Mathur, J. - (1.) This is judgment debtor's petition directed against rejection of their objection under Sec. 47 of the Code of Civil Procedure, 1908, (hereinafter called the Code). The petition has arisen in the circumstances hereinafter indicated.
(2.) The opposite parties 3 and 4 who are real brothers, filed suit for possession against the Petitioners over the house in question. During the pendency of the suit opposite party No. 4 moved an application for deletion of his name from the array of Plaintiffs. The application was allowed and opposite party No. 4 was transposed as a Defendant .Ultimately the suit was decreed on 23 -7 -79 and a decree for possession was passed against the Petitioners in favour of opposite parties 3 and 4. Thereafter an application for execution of the decree was made by opposite party No. 3 claiming execution to be for his own benefit and for the benefit of opposite party No. 4 as well. The execution was sought under Order 21, Rule 35 of the Code. On 5 -8 -1980 the Petitioners preferred objection under Sec. 47 of the Code. The Petitioners' case was that after the decree had been passed on 23 -7 -1979, an agreement was entered into between the Petitioners and opposite party No. 4 on 2 -8 -80 whereby opposite party No. 4 agreed to sell his half share in the house in question to the Petitioners for the consideration of Rs. 4000/ - and received from the Petitioners Rs. 3000/ -. On this basis it was pleaded that the decree stood satisfied and could not be executed under Order 21, Rule 35 of the Code. In the result it was prayed that the execution application be rejected as infructuous. Against the objection under Sec. 47 a reply was filed by Sri. Umapati Rai, Advocate, purporting to be on behalf of opposite party No. 4, Annexure 3. In this reply it was stated that opposite party No. 4 has already executed sale deed in favour of the Petitioners on 21 -8 -1980 for the consideration of Rs. 8000/ -. In this reply also it was stated that the decree for possession had become infructuous. By his order dated 22 -9 -80 Annexure 4 the executing Court rejected the objection under Sec. 47. The executing Court held that no partition by metes and bounds had been effected between the opposite parties 3 and 4 and, therefore, no valid agreement to sell could take place between the opposite party No. 4 and the Petitioners. It was further observed that although in the objection of the Petitioners the sale consideration was alleged to be Rs. 4000/ -, yet in the reply of opposite party No. 4 the sale consideration was alleged to be Rs. 8000/ -. Thus, doubt was expressed by the executing Court regarding the genuineness of the transaction of sale. Against the order of the executing Court the Petitioners preferred revision before the learned District Judge, Lucknow, which came up for hearing before the second Additional District Judge, Lucknow, who by his judgment and order dated 27 -11 -1981, Annexure No. 6, dismissed the same.
(3.) A perusal of the judgment of the learned Judge indicates that the case canvassed on behalf of the Petitioner before him was that in view of the sale deed executed by opposite party No. 4 the Petitioners have become co -sharers with opposite party No. 3 and, therefore, the decree could not be executed. Alternatively, it was pleaded that the decree -holder was not entitled to actual possession over the house. It further appears from the revisional judgment that before revisional Court opposite party No. 4 did not support the Petitioners and alleged that the sale -deed relied upon by the Petitioners was fraudulent and fictitious. The revisional Court held that under Order 21, Rule 15 of the Code it was competent for one of the decree -holders to execute the decree on behalf of himself as well as on behalf of his co -decree holder. On this basis it was held that the application for execution filed by opposite party No. 3 was competent. It was further observed that the case of the Petitioners with regard to the agreement to sell and subsequent sale was very discrepant and now even the decree holder who allegedly executed the sale deed described the deed to be fraudulent and fictitious. The learned Judge thought that the dispute that actually arose before him was not one between the decree holders and the judgment -debtors but one between the two decree holders inter se without reference to the evidence on record the learned Judge observed that the agreement to sell and the sale deed were fraudulent and collusive to defeat the decree in question. The learned Judge relied upon the decision of a learned single Judge of this Court in Bansraj Singh v/s. Krishan Chandra : AIR 1981 All 280 for the proposition that one of the decree holders could not by his unilateral action defeat the right of his co -decree holder to execute the decree. The judgment of the learned District Judge has been assailed on behalf of the judgment -debtors -Petitioners by their learned Counsel Sri. K.C. Jauhari. I have heard Sri. Jauhari and Sri. Umesh Kumar Srivastava who put in appearance on behalf of the opposite parties.;