Pratap Krishna Lohra, J. - (1.) APPELLANT Judgment -debtor has laid this second appeal under Section 100 of the Code of Civil Procedure (for short, 'CPC') against the judgment passed by learned Addl. District Judge, Banswara in Civil Appeal (Execution) Case No. 3/2015, whereby appeal preferred by appellant judgment -debtor under Order 21 Rule 99, 100 and 103 CPC was rejected and order dated 06.01.2015 passed by Addl. Civil Judge (Sr. Div.)) Banswara in Execution Case No. 1/2008 rejecting the objections preferred by appellant under section 47 CPC read with Section 6(1)(a) of the Hindu Succession Act was affirmed.
(2.) THE facts in brief are that Late Gebi Lal, who was having certain immovable properties in Banswara and breathed his last without any male issue, had taken one Daya Lal in adoption. Late Smt. Sunder Bai, the appellant herein, was daughter of Late Gebi Lal and Smt. Reva Bai (third wedded wife of Gebi Lal). According to appellant, who is represented through her legal representative son Chandra Shekhar Sharma, the property of Late Gebi Lal was ancestral as such it was coparceneral, hence after commencement of amendment in the Hindu Succession Act, appellant Smt. Sunder Bai became coparcener of the property of Late Gebi Lal. It is the case of appellant that Daya Lal, who was taken in adoption by Gebi Lal, got a gift deed executed in his favour for the entire property of Gebi Lal for which Gebi Lal was not authorized and in order to oust appellant Smt. Sunder Bai, Daya Lal filed a suit for easmentary rights however the same was rejected by the learned trial Court in the year 1997 on 3rd February, 1997 by the learned Additional Civil judge (Sr. Div.) Banswara against which subsequently an appeal was preferred by Gebi Lal as Karta of Joint Hindu Family, which came to be allowed on 4th July, 2006 and the Joint Hindu Family, i.e., the respondent/decree -holder was found entitled to get the possession of the property which was in possession of Late Smt. Sunder Bai at the relevant time and at present with the present appellant Shri Chandra Shekhar Sharma ordering payment of mesne profit at Rs. 50/ - per month. The judgment and decree rendered by learned Lower Appellate Court on 4th July, 2006 was upheld by this Court in second appeal and thereafter by Hon'ble Apex Court on dismissal of leave to appeal and review petition filed by Sunder Bai. After the judgment and decree rendered by learned lower appellate Court attained finality, the respondent decree -holder submitted Execution Application for getting the judgment and decree executed before the learned Executing Court at the first instance against Late Smt. Sunder Bai but as Sunder Bai breathed her last in the year 2011 during the pendency of the execution proceedings, the decree -holder submitted an amended execution application before the learned executing Court. The Legal Representative of appellant Chandra Shekhar submitted an application/objection before the learned executing Court at Banswara under Section 47 CPC read with section 6(1)(a) of the Hindu Succession Act on the ground that during currency of the litigation an amendment came into existence in the Hindu Succession Act, whereby daughters have been given equal right in ancestral property as coparcener in nature, which bestows absolute right to daughters equal to a son and Late Smt. Sunder Bai being daughter of Late Gebi Lal was equally entitled to share in the holdings of Late Shri Gebi Lal as well as in his ancestral properties. The objection raised by appellant was replied by decree -holder respondent and the learned executing Court after considering the objection rejected the same by order dated 6th January, 2015 on the basis that the grounds raised in the application/objection were not raised at the relevant time when the matter was pending consideration.
(3.) AGAINST order dated 6th January, 2015, appellant filed a regular execution appeal before the learned lower appellate Court and the learned lower appellate Court in turn upholding order dated 6th January, 2015 rejected the appeal filed by appellant and held that the amendment incorporated in the Hindu Succession Act is not retrospective as such the objections raised are not maintainable by order dated 01.05.2015, hence this second appeal.;