Jamadar Bharti and Others vs Chandrama Giri and Others

R.N. Prasad, J.—The petition has been filed against the order dated 13.1.1998 passed in Misc. Case No. 4 of 1997 whereby the petition filed by the opposite party- Petitioners u/s 47 of the CPC at the stage of preparation of final decree for dismissing/staying of preparation of final decree has been held to be maintainable and the petition filed by the Petitioners challenging the maintainability of such petition has been rejected.

The suit for partition was decreed in the year 1974. The appeal was dismissed in the year 1981. No step for preparation of final decree was taken. In the meantime Rajmato Kuer died, in the year 1994. The Petitioners filed a petition under Order 1 Rule 10 of the CPC for being added as legal representative of Rajmato Kuer. The said petition was allowed. Thereafter at the instance of the Petitioners final decree was being prepared. The opposite party filed a pettion u/s 47 of the CPC making prayer therein that there, is no legal representative and as such the process of final decree be dismissed/stayed. On the said petition Misc. Case No. 4 of 1997 was registered. The Petitioners filed a petition challenging the maintainability of the miscellaneous case u/s 47 of the Code of Civil Procedure. The court held that the petition u/s 47 of the CPC is maintainable and rejected the petition of the Petitioners.

Learned Counsel for the Petitioners submitted that the petition u/s 47 of the CPC is maintainable in execution case and not in the case of preparation of final decree whereas learned Counsel for the opposite party submitted that the Petitioners are not legal representative of the deceased Rajmato Kuer rather opposite parties are legal heirs.

It is manifest from the material on record that the opposite party filed a petition u/s 47 of the CPC for rejecting the process of preparation of final decree on which miscellaneous case was registered. Question of maintainability was raised by the Petitioners which was rejected and it was held that the petition u/s 47 of the CPC is maintainable at the stage of preparation of final decree. It is true that nomenclature or wrong mentioning of provision of law is not material, it appears from the submissions made by the learned Counsel for the opposite party that though petition was filed for stopping the process of preparation of final decree but learned Counsel submitted that the Petitioners are not the legal heirs rather the opposite party are legal-heirs but no such prayer was made in the petition u/s 47 of the Code of Civil Procedure. Thus, it appears that the dispute is something else and the petition was filed for something else. Accordingly, this application is allowed. The order impugned is hereby set aside. In such a situation, miscellaneous case itself is held to be not maintainable as the petition u/s 47 of the CPC is maintainable only in a case at the stage of execution of the decree. However, it is made clear that the parties are at liberty to file a fresh petition in accordance with law to meet the ends of justice.