- (1.) This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 27.03.2018 passed by Civil Judge (Sr. Division) I, Palamau, at Daltonganj in Misc. Case No.02 of 2014 (arising out of Execution Case No.03 of 2009) and Partition Suit No.21 of 2001, whereby and whereudner the petition filed under Section 47 of the Code of Civil Procedure on the ground that executing court cannot go behind decree of the parties and representative and cannot entertain any objection that the decree was incorrect in law or fact until it was set aside in appropriate proceeding in appeal or revision.
(2.) The brief facts of the case of the petitioners is that when one partition suit being Partition Suit No.21 of 2001 was filed for passing a preliminary decree in favour of the plaintiff in respect of their half share jointly with respect to the said land as described in Schedule-A and B of the plaint, through a Batwara Commissioner and a separate takhta be carved out in favour of the plaintiff with respect to their half shares out of suit/land as mentioned in Scheule-A and B appended to the plaint. The suit was filed against Dudheshwar Singh, Ballkeshwar Singh, Nand Kishore Singh, Munia Devi and Sukhali Devi for preliminary decree of half shares jointly with respect of suit land. During pendency of the Partition Suit No.21 of 2001 Rampati Mahto died and his legal heirs were substituted. Nand Kishore Singh had also died and his legal heirs were substituted. On being noticed defendant nos.1 to 3 appeared in suit but did not filed written statement. Defendant Nos.4 and 5 did not appear. A decree was passed in the said suit ex-parte against the defendants vide judgment dated 26.03.2004 wherein the plaintiff and defendants have been held to be entitled for half share each in the suit property and directed to prepare preliminary decree. The plaintiffs had filed petition under Order XXVI Rule 13 of the Code of Civil Procedure on 27.05.2004 praying therein to appoint Survey knowing Pleader Commissioner for carving out Takhta as per the preliminary decree and as such the Pleader Commissioner has submitted report on 05.03.2005 and thereafter the final decree was prepared on 09.05.2007. Subsequently an execution case for execution of final decree dated 09.05.2007 for executing the said decree, which was registered as Execution Case No.03 of 2009.
(3.) It is the case of the petitioner that defendant no.2, Balkeshwar Singh had died on 03.10.2003 but his legal heirs were not substituted in the preliminary decree (sealed and signed on 06.04.2004) and as such preliminary decree as well as final decree since has been passed against the dead person, is nullity in the eye of law. A petition has been filed by the petitioner under Section 47 of the Code of Civil Procedure for not executing the decree passed in Partition Suit No.21 of 2001 since the defendant no.2 has died before passing of the preliminary decree and therefore, the decree being nullity in the eye of law, the same cannot be executed so far as it relates to the legal heirs of defendant no.3 is concerned, it is for the reason that the suit shall be abated and if the decree would be executed the legal heir of defendant no.2 would be said to suffer from violation of principle of natural justice. The trial court having not considered the aforesaid aspect of the matter and rejected the said petition, holding the scope of Section 47 of the Code of Civil Procedure, which is impugned in this writ petition in exercise of power conferred under Article 227 of the Constitution of India. ;