Lalu Ram Das and Others vs Upendra Chandra Talukdar

Manisana, J.—This petition arises from the order dated 24.1.1986 passed by Shri D. Saikia, learned Assistant District Judge No. 1. Gauhati.

The Petitioners Lalu Ram Das and Jashoda Das, filed an application under Sections 47 and 151, and Order 21, Rule 101, CPC praying for the stay of execution proceedings in Title Execution case No. 1973, and for determination of the executability of the decree and the right and interest of the Petitioner''s in the decretal land. The learned Assistant District Judge rejected the prayer; hence revision to this Court.

A third party to the decree cannot apply for execution of a decree. However, there are exceptions, such as provisions under Order 21, Rule 16, CPC and Section 146, CPC under Order 21 , Rule 16, CPC a transferee of a decree may apply for execution of the decree. In such a case notice of the application of the execution of the decree is to be given to the decree holder and judgment-debtor. In the present case, the provisions u/s 146, CPC or Order 21, Rule 16, CPC are not attracted as the application for execution of the decree is not made by the alleged transferee, and the decree-holder also bas not came forward for any objection. Therefore, the decree-holder can proceed with the execution in the present case.

That being the position, the question which arises for consideration is whether the prayer of the Petitioners can be allowed.

Section 47, CPC provides that 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, A close reading and scrutiny of Section 47 shows that the questions which fall for adjudication u/s 47 must arise between the ''parties to the suit'' or their representatives.

The next question which now arises for consideration is whether the revision Petitioners are "parties to the suit" or their representatives. ''The parties to the suit'' means parties who are opposed to each other in the suit. The record shows that the Petitioners were not arrayed as parties to the suit and as such they are not ''parties in the suit''. They have also not claimed as representatives of any of the parties. In this view of the matter, the Petitioners cannot raise question about the executability of the decree and their interest in the decretal land u/s 47, Code of Civil Procedure.

The last submission of Mr. Sarma, learned Counsel for the Petitioners, is that u/s 151, CPC the prayer of the Petitioners could be allowed. Under what right the Petitioners are claiming the decretal land is not clearly stated in the petition. Therefore, even assuming that the provisions of Section 151, CPC is applicable to the present case about which I am not expressing any opinion, the jurisdiction u/s 131, CPC cannot be invoked in such a case.

In the result, the petition is dismissed. It is made clear that this judgment shall not cause any prejudice to the right of the Petitioner, to seek other remedy, if any, under the law. No Costs.