- (1.) Should the executing court dispose of the objection application filed under Section 47 of the Code of Civil Procedure summarily? This short question arises for consideration in this revision.
(2.) By the Amendment Act of 1976, reference to Section 47 has been omitted from the definition of 'decree' in Section 2(2 ) and a determination of any question within Section 47 would not now amount to a decree and would not be appealable as a decree. Since sub-section (2) of Section 47 is deleted by the Amendment Act of 1976 with effect from 1-2-1977, the Court is no longer bound to treat an application under Section 47 raising objection to the executing of the decree, as a suit.
(3.) In the light of aforementioned legal position I proceed to examine the facts of this case which are as follows: (i) Durga Prasad (since deceased and represented by Legal representatives ) instituted a suit for declaration, possession, injunction and rendition of accounts, which was dismissed by the court of Additional District Judge No. 6 Jaipur City on 12-12-1980. Against the said decree and judgment, first appeal was preferred and this Court vide judgment and decree dated 2-7-1991 accepted the appeal in S.B. Civil Regular First Appeal No. 60 of 1981, Operative part of the judgment reads thus: " In this view of the matter, this appeal is allowed, the judgment and decree passed by the trial court are set aside and the suit of the plaintiff is decreed. It is held that the plaintiff appellants are entitled for their Osras for the Seva Puja of the temple, as per the earlier agreement between the ancestors of the parties dated Asoj Budi 2 Samwat 1960 first Osra being of Manohar Lal, then Santosh Kumar, Madan Gopal, Mst. Bhonri and Satrya Narain, fourth Durga Prasad, fifth Mst. Ajan, and Satish Chand and sixth Kalu Ram. (ii) Jagdish Narain ( present petitioner) preferred D. B. Civil Special Appeal No. 31/91 against the decree and judgment dated 2-7-1991 but the Special Appeal; was dismissed by the Division Bench of this Court vide of order dated 3-2-1992 and decree dated 2-7-1991 was confirmed. (iii) The legal representatives of Late Durga Prasad filed execution petition for executing the said decree. The petitioner submitted an application under Section 47, C. P. C. raising objection about the execution of the said decree. (iv) The executing court dismissed the application of the petitioner vide order dated 810-1996. This order has been challenged in this revision.;