- (1.) BY the impugned order dated 05.05.2011, the application filed by the appellant � objector under Order 21 Rule 58 CPC in execution proceedings of a money decree in favour of the respondent No.4 Suresh Chandra was allowed by learned Additional District Judge (Fast Track), Rajsamand and the Court has determined her share to the extent of 1/8th only in the suit property and that part of the property was released from the attachment for realisation of the decretal amount.
(2.) LEARNED counsel for the objector � appellant, Mr. Deelip Kawadia submitted that the share of the daughter has wrongly been determined as 1/8th share only, whereas she would have 1/4th share in the attached property because her share cannot be restricted from her father's share Laxmi Narayan in the present suit property and, therefore, the objections have wrongly been decided by the court below and since the proceedings under Order 21 Rule 58 CPC are akin to a fresh suit, the wrong determination of the share of the objector deserves to be corrected in the present appeal. Having heard the learned counsel, this Court is of the opinion that the correctness of the share of the appellant � objector is not in the scope of the objections. Her share in the suit property has been determined by the learned court below, while deciding her objection and it is not a partition suit filed by her, which could be decided after taking evidence of the parties in respect of the nature of the suit property and her share in the suit property as per Schedule I of the Hindu Succession Act, 1956, particularly after its amendment in the year 2005. The auction purchaser, if any, will step in the shoes of the judgment debtor and of-course his share qua the share of the appellant-objector has to be determined by the Court in the appropriate proceedings, but the execution of the decree cannot be stopped for the same. Consequently, while giving a liberty to the appellant � objector to file a proper partition suit for determination of correct share, this Court is not inclined to interfere in the impugned order passed by the learned executing court. The appeal is devoid of merit and the same is hereby dismissed. No costs. A copy of the judgment be sent to the learned court below and to the opposite party. ;