NIRMALA DEVI Vs. PRASIDH NARAYAN SINGH

JUDGEMENT

(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.

(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.