SANJU PANDA, J.
W.P.(C) NO.6482 OF 2006 (Decided on .29.09.2010)
BIDHU BHUSAN NAYAK & ORS. ……… Petitioners.
.Vrs.
SAROJINI NAYAK & ORS. ……… Opp.Parties.
CIVIL PROCEDURE CODE, 1908 (ACT NO. 5 OF1908) – SEC.47.
For Petitioners – M/s.Dayananda Mohapatra, D.K.Sahoo,
M.Mohapatra, S.K.Swain & G.R.Mohapatra.
For Opp.Party No.1 – M/s. Surya Prasad Mishra, S.Mishra, S.Das,
S.Nanda, Miss.S.Mishra, S.S.Satpathy,
B.Mohanty, S.K.Mohanty, A.K.Das &
S.S.Kashyap
S. PANDA, J. This writ petition is directed against the order dated 24.2.2006 passed
by the learned Addl. District Judge, Bhadrak in Civil Revision Petition No.13 of 2005
dismissing the revision which was filed challenging the order dated 8.11.2005 passed by
the learned Civil Judge (Senior Division), Bhadrak in Misc. Case No.93 of 1996 rejecting
an application filed under Section 47 of the Civil Procedure Code.
2. The brief facts of the case are as follows:
The judgment debtor nos.1, 3 and 4 who are the sons of defendant no.1 in Title
Suit No.136 of 1976 filed an application under Section 47 read with Section 151 and
Order 32 Rules-3, 3(A), 4, 7(2) read with Sections 10 and 15 of the Civil Procedure Code
raising a question that defendant nos.16 to 19 who are judgment-debtor nos.21 to 24 are
family deities of the parties. From the order dated 26.7.1985 of the final decree
proceeding, it appears that the deities refused to receive the summons. In the suit, ‘Ga’
Schedule properties were allotted to the parties but there was no instruction in the
decree as to how worship and management of those deities should be done. The trial
court though described the case of the deities who had been installed by the ancestor of
the parties, the elder branch of the family generationwise enjoyed the said schedule
properties and managed the day-to-day affairs of the deities. The plaintiff and defendant
no.3 were the employees of South Railways Department. Without making any
arrangement for the deities, they included the suit properties for their mutual benefits.
Defendant no.15 was a minor. The trial court engaged an advocate for her guardian.
However, he did not represent the said minor at the time of hearing. As she was set ex
parte, her interest had been relinquished in favour of defendant no.3. Defendant
No.1(Ka) was declared dead vide order dated 14.12.1981. Accordingly, the said branch
could not contest the case properly. Subsequently, some person filed an objection under
Section 47 of the Civil Procedure Code as judgment-debtor 1(ka) to declare the
judgment and decree passed in the suit as a nullity, void and the same was not capable
of execution. The decree-holders filed their objection to the said application stating that
the executing court could not go behind the decree and the allegations made by the
judgment-debtors were false and baseless. The executing court, after hearing the parties
and analyzing the facts and circumstances of the case, held that the present petitioners
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are sons of Niranjan Nayak-defendant no.1 and the plaintiff is the brother of defendant
no.1. Defendant nos.2,4 and 5 are other brothers and sisters of the plaintiff. The parties
admitted that defendant nos.16 to 19 (JDr 21 to 24) are represented by defendant no.1
to 15 who are co-sharers. Therefore, there was no necessity for appointment of guardian
when they had been properly represented. So far as defendant no.15 and other so-
called persons are concerned, none of the parties challenged the preliminary decree.
Hence, the final decree was drawn according to the preliminary decree and after long
lapse of several years the present petitioners challenged the preliminary decree only to
linger the process by way of dilatory tactics. Therefore, the trial court rejected the said
misc. case.
3. Challenging the said order, the petitioners filed civil revision. The revisional court
on scrutiny noticed that the deities are represented by their Marfatdars. The Marfatdari
rights with respect to the deities’ properties have been apportioned between the parties
and the Seva Puja of the deities has been managed by the joint efforts apportioning the
cost. The preliminary decree was passed in the year 1984. The final decree passed in
the year 1987 had not been challenged. The allotments made by the Commissioner had
also not been challenged by the parties. In the meantime the parties had already dealt
with the properties separately by selling the same. Therefore, it can be held that the
application under Section 47 of the Civil Procedure Code was filed only to delay the
matter and the decree could not be held as a nullity. Therefore, there is nothing to be
interfered with the impugned order. Accordingly, the revisional court dismissed the
revision.
4. Learned counsel for the petitioners submitted that the suit was filed for partition
of the joint family properties of the deities, defendant nos.16 to 19, and they were set ex
parte. As they were set ex parte their interest was not protected properly. They being
perpetual minors, the court should have protected their interest by engaging a guardian.
As the minors were not properly represented, the judgment and decree passed by the
trial court was a nullity. Both the executing court as well as the revisional court failed to
appreciate the same and rejected the application of the petitioners. Therefore, the
impugned order is liable to be set aside. He further submitted that though the present
petitioners are very much alive, they were shown as dead leaving behind no legal heirs
vide order dated 25.8.1980. The other legal heirs of defendant no.1 were substituted and
the suit was disposed of in the absence of the petitioners. The trial court allotted one-half
share in favour of defendants 3,6 and 15 and allotted one-half share to the plaintiff, D-1/
Ka to D-1/Ta, D-2,D-4 and D-5. Plaintiff got 21/150 interest in the suit properties which is
a part of the aforesaid half interest. In support of his contention, he cited a decision
reported in 53 (1982) CLT 509 (Bhagabat Sahu v. Parbati Samal and others) wherein
this Court has held that when a decree is challenged as nullity because judgment-
debtors were not duly represented, the matter is to be agitated in an independent action
and not to be within the ambit of Section 47 of the Civil Procedure Code. Accordingly,
the executing court as well as the revisional court should have held that the petitioners
may raise that question independently in respect of rejecting their application in the
execution case.
5. Learned counsel for the opposite party no.1 submitted that the deities were duly
represented and the suit being a partition suit, the preliminary decree having been
confirmed in the final decree and the same not having been challenged in any manner,
the petitioners should not raise this question at a belated stage when the parties have
already dealt with the properties independently. He further submitted that the only
intention of the petitioners is to drag the matter. As there is no error apparent on the face
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of the record, this Court should not interfere with the same in exercise of the jurisdiction
under Article 227 of the Constitution of India.
6. The fact that the deities are family deities and the suit was filed for partition. The
preliminary decree was passed in the year 1984 and the same was confirmed in the final
decree in the year 1987. Allotment of share by the Commissioner had not been
objected, the deities are represented by Marfatdars and the Marfatdary right with
respect to the deities’ properties had been apportioned between the parties. Therefore,
the properties under ‘Ga’ Schedule are enjoyed by the family and all these properties are
partiable. According to their claim, the trial court considered the case of the parties and
passed a preliminary decree which was not challenged at all. The question now raised
by the petitioners is that the deities being perpetual minors were not properly
represented and defendant no.15 being a minor was also not properly represented and
hence the decree is to be declared as a nullity. The said question was raised by filing an
application under Section 47 of the Civil Procedure Code. Under Section 47 of the Civil
Procedure Code the Court has to decide 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.
7. From the above it is crystal clear that whether the decree was obtained validly or
not is within the scope of Section 47 of the Civil Procedure Code which is only to
consider the discharge or satisfaction of the decree by the executing court. This Court in
the case of Bhagabat Sahu’s case (supra) has held that if the judgment-debtors contend
that they were not properly represented and were not thus parties to the decree, they
cannot come under Section 47 of the Civil Procedure Code as if they were parties to the
suit. This is a matter, therefore, which has to be decided by a separate suit.
8. Therefore, considering the above principle and law and the fact that the present
petitioners are raising a question that the deities who are minors and other minors were
not properly represented, this Court is of the view that they cannot raise those questions
by filing a petition under Section 47 of the Civil Procedure Code. It is open to the parties
to raise that question independently.
9. As there is no error apparent on the face of the impugned order, this Court is not
inclined to interfere with the same.
With the aforesaid observation, this writ petition is disposed of.
Writ petition disposed of.
