Md. Abdul Matin and Others vs Mt. Bibi Hamidan

This matter comes before us on an application u/s 5, Lim. Act, for extension of time for filing the appeal. Notice of this application was issued and the opposite party is now represented by Mr. Anand Prasad who contends that the appeal itself is not maintainable as no appeal lies against the order complained against to this Court.

It appears that a decree for costs was passed in favour of one Munshl Umaid Ali. He died after the decree. One of his heirs applied for execution of the decree in so far as her share in the inheritance of Munshi Umaid Ali is concerned. The other heirs came forward and objected on the ground that the share claimed by the petitioner for execution is not what she claims, bub less. The learned Subordinate Judge went into evidence and decided the shares of the different heirs of Munshi Umaid Ali. Against this order of the Subordinate Judge the present appellant went in appeal before the District Judge.

A preliminary objection was taken before the District Judge to the effect that as the value of the suit was more than five thousand rupees an appeal would lie to the High Court and not before him. This preliminary objection prevailed, and the learned District Judge returned the memorandum of appeal for presentation to this Court. When the memorandum of appeal was presented to this Court, the Stamp Reporter reported that the appeal was barred by limitation thereupon the appellant made the application for extension of time u/s 5, Lim. Act, which is now before us.

The preliminary objection taken by the opposite party appear to be sound and it ought to prevail. u/s 47, Civil P.C. a question can be decided by the Court executing the decree only when it arises between the parties to the suit, or their representatives. Here the question in dispute does not arise between the parties to the suit, but between two persons who claim to be the legal representatives of a person who was a party to the suit. In order to attract the provisions of Section 47, it is necessary that the dispute must be between parties who are opposed to each other in the suit. The present appellants and the respondent cannot be considered to be in that situation. It is therefore clear that no appeal lies against the order of the learned Subordinate Judge. If the legal representatives of the deceased decree-holder are disputing as regards the shares to which they are entitled in the inheritance of the deceased decree-holder, they ought to settle the point in a regular suit; and they cannot do so by way of application for execution of the decree.

This appeal must be dismissed on the preliminary ground that the appeal does not lie, with costs to the opposite party. Hearing fee two gold mohurs.