Laxminarayan vs Tulsabai and Others

A.K. Mishra, J.

This revision has been filed by the judgment-debtor who suffered decree of partition. Not only the preliminary decree was passed by the Court on 28-7-90 but it was affirmed in the appeal and attained finality. Thereafter final proceedings were taken up and final decree also attained finality. Partition of a residential house was ordered by decree and while passing the final decree it was observed that it was not possible to divide the house in five shares, hence it was necessary to sell the house, and the consideration of that would be distributed amongst the parties to the suit.

After the final decree attained finality petition was filed before the executing Court challenging the auction of the properties on the ground that plaintiff was a widow and she did not have the right to claim partition of residential house. Hence the decree is a nullity. The trial Court over-ruled the objection and came to the conclusion that these objections can not be entertained. Learned counsel has urged that it is a case where objection raised goes to the very root of the matter and ought to have been entertained and inquired into.

Learned counsel appearing for the respondents has supported the impugned Order and urged that it is a case were dilatory tactics are being adopted by the judgment-debtor and the executing Court can not go behind the final decree. Objections are as to the invalidity of the decree not to its nullity and they are not maintainable and they have been rightly rejected without inquiry.

After hearing both the parties I am of the opinion that this revision petition has no merit and deserves to be dismissed.

The submission of the learned counsel that the widow was not having right to claim partition. This objection ought to have been raised at the stage of preliminary decree which on appeal has attained finality. This objection was not taken at that time, hence it can not be looked into at this stage.

Secondly the objection as to the improvements made is also with respect to the distribution of the assets ought to have been taken before final decree was passed, not after that. The other objections with respect to the non inclusion of entire property in the suit for partition can not be raised in execution. Learned counsel for the petitioner has submitted that the appeal against the final decree has become barred by limitation.

Learned counsel placed reliance on the decision in the case of Puranlal v. Smt. Rampyaribai 1965 MPLJ S.N. 68, in Order to contend that suit by widowed mother for partition and separate possession is incompetent. It was further held that as long as the sons remained united, mother could not file a suit for partition. In Puranlal''s case the objection was taken at the initial stage not after obtaining preliminary and final decree Bar with the widow is not absolute for obtaining partition, hence such a ground ought to have been raised before passing of the preliminary decree and final decree. He further placed reliance on the case of Tekchand v. Uddhav Kumar1984 JLJ SN 16. In the said case the decree was passed for ejectment against the tenant who had the protection of statutory ground of eviction prescribed u/s 12 (1) of the M.P. Accommodation Control Act, hence the decree not based on any such ground was held to be nullity. It is not the factual matrix obtainable in the present case. Reliance has also been placed on the decisions rendered in the case of Janouti Bai v. Rajobai 1985 MPWN SN 400 and in the case of Vemavarapur Mallikarjuna Rao Vs. Chaturvedula Siva Sankara Prasad and Others, . In the said cases the suit was held to be not maintainable for want of inclusion of entire property. Reliance has also been placed on the decision rendered in the case of Jitbhandhan v. Gulab Devi 1983 MPWN SN 17, so as to contend that objections pertaining to lack of jurisdiction can be raised in the execution proceedings. Objections raised by the petitioner in the present case are not within the domain of the jurisdiction of the Court.

Learned counsel for the respondent relied upon the decision of Allahabad High Court, rendered in the case of Lala Sri Krishna Dass Vs. Smt. Phool Kumari and Others, , so as to contend that widow is having right to file suit for partition. This question can not be gone into at this stage after passing of the final decree.

Thus I find no merit in the present revision petition. Petition is accordingly dismissed. Trial Court is directed to expedite the execution.

As to the submission that fresh suit, if filed would be barred by limitation, it is not for this Court to look at that aspect.