- (1.) SUDHIR Narain, J. The petitioner has challenged the order, dated April 10,1995, rejecting the application of the petitioner by respondent No. 1 for Sarda Devi on the Will examined by a hand getting the signature of Smt. writing expert.
(2.) THE facts in brief are that one Smt. Sarda Devi was owner of two distinct shops. THE petitioner was admittedly tenant of those shops. Smt. Sarda Devi filed S. C. C. Suit No. 182 of 1988 and S. C. G. Suit No. 183 of 1988 for arrears of rent, ejectment and damages, against the petitioner. Both the suits were consolidated and Suit No, 182 of 1988 was marked as leading case. THE Judge, Small Causes Court decreed both the suits on May 27, 1992. THE petitioner preferred two revision (Revision No. 280 of 1992 and 281 of 1992) before the District Judge. During the pendency of the revision Smt. Sarda Devi died on 27th October, 1992. THE petitioner filed an application for substitution indicating Bans! Lal Bagla, respondent No. 2, as heir and legal representative of Smt. Sarda Devi. THE said substitution application was allowed by the Court. THE revision was dismissed on August 24, 1994. Respondent No. 2 put the decree in execution. In the said execution case the petitioner filed an objection under Section 47 of the Code of Civil Procedure on September 26, 1994. In ths objection it was stated that respondent No. 2 is not heir and legal representative of deceased Sarda Devi. Respondent No. 2 appears to have relied upon the Will executed by Smt. Sarda Devi. THE petitioner filed an application that the signature of Sarda Devi may be examined by hand-writing expert which has been rejected by the impugned order, dated 10-4- 1995. This order has been challenged by the petitioner in the present writ petition. Learned counsel for the petitioner urged that it is necessary for the Executing Court to examine as to whether respondent No. 2 is legal heir of deceased Smt. Sarda Davi. He has placed reliance on sub- section (3) of Section 47 of the Code of Civil Procedure which 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 deter mined by the Court. In the present case the petitioner has himself filed an application for impleadment of respondent No. 2 as heir and legal re presentative of the deceased Smt. Sarda Devi during the pendency of the revision filed by him, and he was substituted as her heir and legal representative. The decree passed by the Judge, Small Causes Court was affirmed in revision by the revisional Court. Respondent No. 2 was himself a decree-holder. Sub-section (3) of Section, 47 C. P. C. contemplates a situation when the dispute arises as to who is heir and legal representative of a party. In the objection taken under Section 47, C. P. C. , there is no dispute that after death of decree-holder, who was a party in litigation, some other person is claiming the right to execute the decree as representative of such party. In Mst. Manturni v. Munni Lal Bhagat, AIR 1963 Pat 127, wherein on death of a party during pendency of suit, some of heirs were substituted ignoring his widow, an objection was taken by the widow in execution of the decree that she was not substituted, it was held that application by her under Section 47 was not maintainable as she was not claiming as legal representative of the judgment- debtors against whom the decree had been passed. The second submission of learned counsel for the petitioner is that if on account of subsequent event if certain facts came to knowledge which were not within the knowledge of the party when the decree was passed, they can be raised by him before the Executing Court. He has placed reliance upon Union of India v. S. B. Singh, AIR 1981 All 225, where in the Court observed that the Executing Court cannot go behind the decree but there are few exceptions namely where the Court had no juris diction to decide the same or where the decree is nullity or is unexecutable on account of happening of an event and such questions even if decided prior to the decree cannot exclude the Executing Court to go into the question as it goes to the very root of the matter. In the present case, respondent No. 2 had already been party in the revision and the decree has been affirmed and he is the decree-holder. The contention that he was only impleaded by the petitioner as a party in the revision and, therefore, no decree could have been passed in his favour, is not such a question which goes to the very root of the matter relating to the execution of the decree.
(3.) IN the result, the writ petition is dismissed. Petition dismissed. .;