Sunil Ambwani, J. - (1.) HEARD Shri M.K. Gupta, learned counsel for the petitioners. Shri Ravi Agrawal appeared on behalf of respondents.
(2.) THIS writ petition arises out of an order passed by Civil Judge, Ghaziabad on 20.1.1989 in Misc. Case No. 301 of 1988, Smt. Maya Devi v. Smt. Murti Devi, in which the objections under Section 47 read with Section 151 of Code of Civil Procedure were partly allowed and the decree of ejectment was held not to be executable. By the judgment and order dated 23.11.1990 the Vth Additional District Judge, Ghaziabad, dismissed Civil Revision No. 32 of 1989 under Section 25 of the Provincial Small Causes Court Act read with Section 115 of CPC. Brief facts, giving rise to this writ petition are that Srnt. Murti Devi filed a JSCC No. 976 of 1997 against Smt. Maya Devi for eviction. The suit was decreed on 20.1.1978. In Execution Case No. 712 of 1988 Smt. Maya Devi filed objections under Section 47 of the Code of Civil Procedure (Misc. Case No. 48 of 1988) claiming that the decree was a nullity. The objections were rejected by the Civil Judge on 16.10.1988, against which the Revision No. 259 of 1988 was dismissed on 17.10.1981. Smt. Maya Devi the judgment debtor thereafter filed an Original Suit No. 326 of 1981 in the Court of Munsif, Hapur claiming to be the owner of the property and applied for an ad-interim injunction. The application for injunction was rejected. In appeal the Additional District Judge, Ghaziabad granted interim injunction on the ground that she is not liable to be ejected from the disputed property till the disposal of the Suit No. 326 of 1981. Later on it was found that the Munsif, Hapur had no jurisdiction to entertain the suit. The plaint was returned for presenting to appropriate Court, on which Maya Devi filed OS No. 199 of 1988 in the Court of Civil Judge, Hapur and again applied for injunction. Her application was rejected. She again filed objections under Section 47, C.P.C read with Section 151 on 21.12.1988 in the execution proceedings of the decree of ejectment.
(3.) SMT. Maya Devi in her objections as well as supplementary objection under Section 47/151, C. PC claimed herself to be the owner of the suit property. The executing Court held that she has perfected her rights under Section 14 of the Hindu Succession Act, 1956, and thus until the suit filed by her is decided, she is not liable to be evicted from the premises in dispute. The revisional Court, relying upon Bhawan Watch and others v. Solanki Hanuji Khodaji Mansang and others, AIR 1972 SC 1371, held that though the executing Court cannot go behind the decree under execution, it is the duty of the executing Court to find out the true effect of the decree. In appropriate cases it can take into consideration the pleadings as well as the proceedings leading up to the decree. The executing Court to consider the circumstances under which the words in the decree are used and that if the Court feels in discharge of its duty that the decree is not executable, it will be deemed to have jurisdiction vested in it to consider the issue.;