D.K.Seth, J. - (1.) Original Suit No. 179 of 1989 was decreed by the learned trial court. An appeal thereout, being number 198 of 1993, was also dismissed. A review application filed before the appeal Court, being number 46 of 1994. is still pending. In the meantime, the decree was put to execution in Execution Case No. 4 of 1996. During the pendency of the review application, the judgment debtor having died, the petitioner was brought on record, as his legal representative. The petitioner thereupon filed an objection under Section 47 of the Code of Civil Procedure, in the execution proceedings, which has since been dismissed by an order dated 7th December, 1998 passed by the learned Civil Judge (Junior Division), Garhmukteshwar. district Ghaziabad. Against the said order, a Civil Revision No. 13 of 1999 was preferred. By an order dated 18th August. 1999 passed by the learned Additional District Judge, Hapur. the said revision was dismissed. It is against these orders the present application under Article 227 of the Constitution of india has been filed.
(2.) Mr. Rakesh Pandey, learned counsel for the petitioner in support of the petitioner contends that the petitioner has acquired interest in the suit properly by virtue of a deed of sale executed by the judgment debtor on 23rd October, 1986, whereas the suit was filed in 1989. Therefore, the decree could not be executed against the petitioner as legal representative of the judgment debtor since the property did not come in the hands of the petitioner by reason of the death of the judgment debtor. He relied upon Section 50 of the Code, which prescribes that the decree could be executed as against the legal representative so far as the property of the judgment debtor comes into the hands of the said legal representative on account of his death. Therefore, the decree could not have been executed as against the petitioner as legal representative of the judgment debtor in respect of the property which came to their hands independently before the institution of the suit. Rut both the learned courts below did not address themselves with regard to the said point and had rejected the petitioner's objection on an erroneous ground and has, thereby, failed to exercise their jurisdiction. Inasmuch as the executing court has no jurisdiction in executing the decree in respect of the property that had come to the hands of the petitioner beyond the scope and meaning of Section 50 of the Code. On these grounds he assailed the said two orders.
(3.) Mr. N. K. Sharma, learned counsel for the opposite parties on the other hand contends that the defendant No. 1 judgment debtor in the suit had never taken this point in the written statement. Though defendant had contended that he had transferred the suit properly to the other defendants but he had never mentioned that he had transferred the property before the institution of the suit, to the present petitioner. That was not also a ground in the appeal nor was so alleged in the writ petition. Therefore, this question cannot be raised by the legal representatives. Since it was not raised so long, the same could not have been raised in the execution proceedings. As sueh, the Courts had not committed any error in not addressing it on the said proposition. He also contends that in order to determine the said question, the Court has to go behind the decree. According to him, the executing court cannot go behind a decree as has been held in the decision in the case of Bhanwar Lal Bhandari v. Universal Heavy Mechanical Lifting Enterprises, 1999(1) SCC 558. On this ground, he prays that the petition should be dismissed.;