- (1.) This revisional application is directed against Order No. 79 dated 16th March, 2013 passed by the learned Civil Judge (Junior Division), 1st Court, Diamond Harbour in Miscellaneous Case No. 06/2009. The applicants in this revisional application claim that through Monimohan Bar, who is husband of the petitioner no.1 and father of petitioner no.2 was the son of one, Bhunja Behari Bar, was the plaintiff in Title Suit No. 507 of 1978. It is the case of the applicants that Bhunja Behari Bar died during the pendency of the suit and no substitution was effected. However, Monimohan Bar, who is one of the sons of Bhunja Behari Bar pre-deceased his father. From a certificate annexed to this revisional application it appears that Monimohan Bar (since deceased) was the son of deceased Bhunja Behari Bar. The petitioners filed an application before the learned Court below under Section 47 of the Code of Civil Procedure contending, inter alia, that preliminary and final decree was passed by the Court below in their absence is not binding on them for the reason that the said decree was passed without adjudication of their share of property in the suit plot. Since on the death of Bhunja Behari Bar no substitution was made and since the petitioners' father pre-deceased Bhunja they were not aware of the suit for partition.
(2.) Therefore, they could not ventilate their grievances before the execution case was filed on the basis of the final decree passed in the aforesaid suit. The opposite party filed written objection to the petitioners' application under Section 47 of the Code of Civil Procedure and agitated after the final decree was passed. The same cannot be entertained by the Court below. By the order impugned, the learned Court below has held that the application filed by the petitioner under Section 47 of the Code of Civil Procedure being Misc. Case No. 06/2009 cannot be entertained as the same is not maintainable. In support of rejection of the petition under Section 47 of the Code, the learned Court below has held that since preliminary and final decree have been passed, the petitioner cannot file an application under Section 47 of the Code of Civil Procedure. Section 47 of the Code of Civil Procedure is set out herein below : "47. Question to be determined by the Court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passed, or their, representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. 2[***] (3) 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 determined by the Court. 3[Explanation I.- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II.- (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]" Section 47 itself says that questions to be determined by the Court executing decree. From a bare reading of Section 47 it appears that legislature has cast a duty upon the Executing Court to decide all questions in the execution proceeding while executing the decree and not by a separate suit. The questions may arise in between the parties in the suit in which the decree has been passed or such questions may arise at the instance of the representative of the parties in the suit relating to execution. In such situation the petitioners were claiming to be legal heirs of Monimohan Bar, predeceased son of Bhunja Behari Bar. The Court ought to have heard the application under Section 47 on its merit and ought not to have rejected the same simply on the ground that final decree has been passed. This Court cannot agree with the reasoning given by the learned Court below. The impugned Order is set aside. The learned Court below is directed to hear out the application under Section 47 of the Code of Civil Procedure within a period of three months from the date of communication of this Order and without granting any unnecessary adjournment to either of the parties.
(3.) Both the parties have given liberty to communicate the gist of this order or to communicate by a server copy of this order. The learned Court below will not be swayed in any way by any of the observations made by this Court while deciding the application under Section 47 of the Code of Civil Procedure. The revisional application is disposed of.;