B.C. Chakrabarti, J. - (1.) This is an appeal from an order of dismissal of an objection under Section 47 of the Code of Civil Procedure being Misc. Case No. 56 of 1973 of the 3rd Court of teamed Subordinate Judge at Alipore.
(2.) The following facts are not in dispute : The respondent Suresh Chandra Bhadra as plaintiff instituted a suit for partition, Title Suit No. 48 of 1958 of the 3rd Court of learned Subordinate Judge at Alipore, against Phanibhusan Dutta and others. A preliminary decree was passed on contest on 8.12.65 by the aforesaid decree 8 annas share of the plaintiff was declared and separate allotment of 4 annas share of the defendants 3 and 4 were directed. After the passing of the preliminary decree Phanibhusan Dutta who was defendant No. 1 in the suit died on 2.4.1967. On the application of the plaintiff dated 29.6.1967 the heirs of Phanibhusan Dutta namely his widow Amiya Bala Dutta (appellant before us) 6 sons and 2 daughters were brought on record. Subsequently a Commissioner for effecting partition was appointed, the parties having failed to effect amicable partition in terms of the preliminary decree. The final decree was passed on 6.5.1969.
(3.) Thereafter the plaintiff decree holder filed an execution case for separate possession of his share in 1973 which was registered as Title Execution No. 12 of 1973. In the said Execution Case the appellant filed an objection under Section 47 of the Civil Procedure Code alleging that all the heirs of the deceased Judgment debtor Phanibhusan Dutta had not been brought on record. Her case is that the deceased left behind 7 sons and 6 daughters besides the widow. She also alleged that in the substitution petition two of the sons and a daughter have been wrongly named as Bidhubhusan, Sidhu and Bhabani. She further alleged that the allotment made by the partition commissioner was unfair and in quitious. The substantial point on which the objection under Section 47 was fought out was that since all the heirs of Phanibhusan had not been brought on record, the final decree was void, illegal and inoperative and not binding on the heirs of Phanibhusan and therefore not executable as against them.;