JUDGMENT V.K. Shukla, J.
1. In the present case, petitioner is assailing the validity of the order dated 31.3.1996 passed by Executing Court rejecting the objection preferred under Section 47 of Code of Civil Procedure and thereafter revision preferred against the same has also been dismissed on 21.4.1998.
2. Brief facts giving rise to present writ petition in briefs is that one Bhagwan Das was owner of property in dispute. On 14.9.1946 said Bhagwan executed lease deed in favour of Hari Shankar Lal Sharma, Thereafter sale deed has been executed in favour of Murari Lal on 6,2.1965. Said Murari Lal is alleged to have given notice to Hari Shankar Lal Sharma about the execution of sale deed and pursuant thereto it has been contended that rent was paid to Murari Lal and thereafter same has been deposited in the Court, in proceeding undertaken under Section 30 of U.P. Act No. XIII of 1972. Hari Shankar Lal Sharma had rented part of the said premises to of Ram Swaroop and when he stopped paying rent, then Hari Shankar Lal filed suit against Ram Swaroop for ejectment being suit No. 131 of 1980. Said suit was decreed on 21.1.1981. Appeal preferred against the same has also been rejected on 25.8.1983, Thereafter second appeal preferred against the same has also been rejected on 21.8.1995. Prior to it for execution of said decree execution case No. 21 of 1984 has been filed by legal heirs of Hari Shankar Sharma. In the year 1994 Murari Lal filed a suit against Ram Swaroop being suit No. 283 of 1994 after tenancy of Hari Shankar Lal Sharma has been allegedly terminated. Pursuant to the said decree in Original Suit No. 283 of 1994 executing proceedings have been initiated and on 27.7.1995. Murari Lal alleges to have obtained Dakhalnama pursuant thereto. Brij Lal son of late Hari Shankar Lal Sharma has filed suit for cancellation of decree in suit No. 283 of 1994, which has been registered as suit No. 625 of 1995. Murari Lal in execution proceedings, which has been going on for execution of decree of suit No. 131 of 1980 filed objection under Section 47 of Code of Civil Procedure on the basis that he is owner and in possession of the property in question on the basis of Dakhalnama given by Court hence he cannot be ejected from the portion occupied by Ram Swaroop. Said objection under Section 47 of Code of Civil Procedure has been rejected. Revision preferred against the same has also been rejected. At this juncture, petitioner has approached this Court.
3. Counter affidavit has been filed and therein it has been contended that order which has been passed by both Courts below are rightful order and same does not suffer from any legal infirmity. It has been contended that entire proceedings in respect of obtaining of possession are an outcome of manipulation. Reference has been given of various proceedings namely suit No. 100 of 1992 wherein order has been passed to the effect that Ram Swaroop shall not be put in possession. Further reference has been given of suit No. 484 of 1992 filed by petitioners which was got dismissed. Further reference has been given of suit No. 571 of 1992 filed by petitioner and this suit has also been dismissed and restoration application is alleged to be pending. Suit No. 10 of 1995 has also been filed. It has been specifically contended that Dakhalnama is fictitious and the fact of the matter is that Ram Swaroop is in possession. It has been contended that objection which has been filed has no subsistence and same was clearly not maintainable. In this background it has been contended that writ petition is liable to be dismissed.
4. Rejoinder affidavit has been filed and it has been contended that in view of the provisions of Section 12 of U.P. Act No. XIII of 1972, respondent No. 3 shall be deemed to occupy the premises as he had let out the petitioners. Suit filed by petitioner against the Ram Swaroop has been sought to be justified and validity of Dakhalnama has been reiterated. In this background it has been contended that objection under Section 47 of Code of Civil Procedure was clearly maintainable.
5. After aforementioned pleadings has come on record, present writ petition has been taken up for final disposal with the consent of the parties and the same is being heard and finally decided.
6. Sri B. Dayal, Advocate, appearing for petitioner contended that in the present case objection filed under Section 47 of Code of Civil Procedure was clearly maintainable and further as he had been put in possession in pursuance of decree and tenancy of Hari Shankar Lai Sharma has been terminated, as such said decree in question is totally in executable and as such objection under Section 47 of Code of Civil Procedure in all eventuality is liable to be allowed, the orders passed are liable to be quashed.
7. From the side of the respondents, it has been contended that entire proceedings on the basis of which possession has been alleged are collusive proceeding and earlier proceedings had traveled upto this Court and further Dakhalnama on which possession is alleged same was not binding up, inasmuch as, decree holder was not at all arrayed as party in the said suit and as such said proceedings is of no consequence, It has also been asserted that this is proxy litigation being contested by Ram Swaroop, and entire Dakhalnama etc. are collusive and thus, execution is permitted to brought its logical end.
8. In order to appreciate respective arguments, Section 47 of Code of Civil Procedure is being quoted below;
Section 47 : Questions to be determined by the Court executing decree - (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(****) (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this Section, be determined by the Court.
(Explanation.I--For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
(Explanation. II--(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which decree is passed; and
(b) all question relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be question relating to the execution, discharge or satisfaction of the decree within the meaning of this section.
9. Bare perusal of Section 47 of Code of Civil Procedure would go to show that all questions arising between the parties to the suit in which decree was passed or their representatives, and relating to execution discharge or satisfaction of decree has be to determined by the Court executing the decree and not by separate suit. Under Section 47(3), there is obligation on the part of the Court to decide the question if the same is raised as to whether any person is or is not the representative of a party. Explanation I and Explanation II deals with incumbent who are to be treated as party to the suit, Thus, as per Section 47 of Code of Civil Procedure all questions relating to the execution, discharge or satisfaction of decree arising between the parties to the suit or their representatives is to be decided by executing Court.
10. Now to start with the right which has been leased out to Hari Shankar Lal Sharma by Bhagwan Das is to be seen. Said lease deed is as follows:
"This indenture made this forteenth day of September one thousand nine hundred and forty six between Seth Bhagwan Das adopted son of Seth Gopal Das by caste Khandelwal Jain Rais of Askunda Bazar, Mathura, hereinafter called the lessor, which term shall mean his heirs successors representatives executors and assignes and Pandit Hari Shankar Lal Sharma son of Pandit Chokhey Lal resident of Mendu and at present resident of Bengali Ghat Mathura hereinafter called the lessee which term shall mean and include his heirs representatives executors and assigns of the other part.
Whereas the said lessor does hereby demise the aforesaid premises described in the schedule hereunto attached to the lessee in the manner hereinafter appearing for his use and occupation in any way on the terms and conditions detailed below;
(1) In consideration of the rent hereinafter reserved and of the covenant on the part of the lessee hereinafter contained the lessor hereby demises to the lessee all the plot of land and old structure of a shop which are a part of the premises the Municipal Number of which is 1773 Q, R, As and which is situated outside the harding Gate, Mathura along the P.W.D. road side and more particularly described at the foot hereof and delineated on the plan annexed hereto and thereon shown with it's boundaries with all rights of easements and appurtenances whatever belonging or an any way appurtenant thereto to hold the same to the lessess from 1st November 1946 on perpetual lease paying therefore, a rent of Rupees eight per month to be lessor exclusive of all such taxes cesses and revenues are or may from time to time be assessed upon the said premises.
(2) That the lessee will pay a ground rent of Rupee eight per month to the lessor for all the plot of land and old structure of building that are and may be contracted hereinafter by the lessee on the premises hereby leased out to him.
(3) That the rent shall be paid every month but the lessor shall no right to ejecting the lessee unless the lessee fails to pay rent for six months consecutively.
(4) That the lessee shall always be at perfect liberty to make any addition and alternations to the existing building or make new construction on the ground leased put to him without any hindrance on the part of the lessor or his agent.
(5) That a complete plan of the premises leased out to the lessee and bounded by red lines in the plan is hereby annexed and for forms part of the lease.
(6) That the lessee shall have power to transfer his rights acquired by these presents as well as or any structure or building constructed by him on the premises leased out to him subject to all the covenants herein contained, to his wife or his family member only but all the conditions of the lease shall be binding on the transferee.
(7) That in case the lessee intends to sell the above property the lessor will be entitled to purchase it according to the then market value of the building.
(8) That if at any time the lessee is ejected from the premises under the provisions of the terms of this lease he shall entitled to get the cost of the building constructed by his over the premises leased out to him according to the market value of the building.
(9) That if at any time the leasee breaks any conditions or term of the lease mentioned above the lessor shall a right of ejectment of the lessee from the premises leased out to him but after one month's clear notice to the lessee."
11. Bare perusal of aforementioned lease deed would go to show that nature of the lease is perpetual in nature subject to payment of rent to lessor exclusive of all taxes/cases/revenues to be assessed on the said premises. Condition No. 3 provides that lessor shall have no right of ejectment unless there is failure on the part of lessee to pay rent for six months consecutively. Condition No. 4 has given liberty to make any addition, alterations or new constructions. Condition No. 6 has given authority to lessee to transfer his rights required on the same terms and conditions to his wife or his family members and the said transfer with same terms and conditions is binding on the transferee. Condition No. 7 has given right to the lessee that if lessee intends to sell the above property the lessor will be entitled to purchase it according to then market value of the building. Condition No. 8 provides that if at any time lessee is ejected from premises, under the provisions of the terms of this lease, he shall be entitled to get cost of the building constructed by him over the premises leased out to him according to the market value of the building. Condition No. 9 specifically mentions that if at any time lessee breaks any condition or terms of the lease mentioned above lessor shall have right of ejectment of the lessee from premises leased out to him after one month's clear notice to the lessee. Thus, terms and conditions of lease are very much categorical and clear.
12. In the present case Ram Swaroop was tenant" of Hari Shankar Lal Sharma and Hari Shankar Lal Sharma had filed suit No. 131 of 1980 for ejectment. Said suit was decreed. Appeal preferred against the same was also dismissed on 25.8.1983. During pendency of Second Appeal Murari Lal without impleading Hari Shankar Lal Sharma or his legal heirs, assignes as party allegedly terminated lease and filed suit No. 283 of 1994 which has been decreed. Said decree was put to execution and Dahkalnama is alleged to have been obtained on 27.5.1995. Second Appeal has been dismissed on 21.8.1995. Hon'ble Apex Court in the case of Gangabai Gopal Das Mohate v. Phoolchand reported in 1997 (1) JT 343 (SC) : 1997 SCFBRC 199 has taken the view, that if a person approaches the executing Court claiming that he is representative of decree holders interest in the decree and decree holder, dispute it, the execution Court has to resolve the dispute for proceeding with execution of decree. As to whether Murari Lal is representative of Ram Swaroop is a question which is to be decided by executing Court. It is true that representative in Section 47 of the Code of Civil Procedure has a wider meaning than the one given in Section 50. It not only means legal representative in the sense of heirs, executors or administrators but includes any representatives in interest of the decree holders or the judgment debtor who is bound by the decree. In this particular provisions expression representative has not been qualified with word 'legal' as has been done in Section 50 of the Code. Therefore, persons may not be the legal representatives of the judgment debtor but he may be representative of the judgment debtor and as such question raised by him has to be answered.
13. Tested on this principal, in the present case factual position which is emerging that petitioners are claiming independent right on the basis of sale deed executed prior to institution of suit i.e. on 6,2.1965 and thereafter on the basis of decree passed during pendency of Second Appeal in this Court and possession pursuant to said decree being taken on 27.7.1985. Petitioner is not at all legal representative within the meaning of Section 2(ii) read with Section 50 of Code, as property is question has not devolved upon petitioner on account of death of Murari Lal. Petitioners in the fact of present case are not at all representative in the interest of judgment debtors, as they are claiming ail together independent right, qua the rights of Murari Lal. Thus petitioners cannot be termed to be "the representative" of judgment debtor within the meaning of Section 47 of Code. The objections were thus, clearly not maintainable.
14. Learned Counsel for the petitioner has placed reliance on the judgment of this Court in the case of Sushil Kumar v. Additional District Judge reported in 2000 (1) ARC 18, for the proposition that Executing Court cannot ignore the question, which has been raised by an incumbent who had acquired property, independently.
15. In the case cited above, petitioner was legal representative of judgment debtor, but was claiming that she had acquired property in question in her own independent right, prior to institution of suit and in objection preferred under Section 47 of Code, specific claim has been made that suit property has not devolved on her on account of death but she was holding it independently. As this question has not been answered by executing Court, this Court remitted the matter back. Here in the present case, undisputed positron is that ex-parte decree has been obtained during pendency of suit and possession is being claimed on the basis of same. Petitioner is thus claiming independent right, and as petitioner are neither party to the suit, nor representative in interest of judgment debtors, as such as already observed above, objection under Section 47 was not maintainable.
16. In view of the facts and circumstances, as mentioned above, objection at the behest of petitioner not being maintainable, this is not a fit case for exercising extra-ordinary jurisdiction under Article 226/227 of the Constitution of India.
17. Consequently present writ petition lacks merit and the same is dismissed.
No orders as to cost.