Under Section 47 of the Civil Procedure Code, where a question arises as to whether any person is or is not the representative of a party, such question shall be determined by the executing Court.
4. Here the objection was that Basant Lal was not a party to the suit at the time it was decreed and, therefore, the question as to whether the execution can proceed against the widow of Basant Lal is a question which it was competent for the learned Subordinate Judge to determine.1
Patna High Court
Musammat Muna Koer vs Durga Prasad And Ors. on 31 January, 1917
Equivalent citations: 39 Ind Cas 172; AIR1917Pat623
Bench: Mullick, J Prasad
1. The plaintiff in the suit out of which this appeal arises brought a suit for recovery of immoveable and other properties in which defendant No. 8 was a pro forma defendant. The suit was dismissed. There was an appeal to the High Court against that decree, and it is alleged by the appellant before us that during the pendency of that appeal in the High Court pro forma defendant No. 8 Basant Lal died and that at the time the High Court made its order decreeing the appeal, no substitution of the heir of the deceased Basant Lal was made. But when the plaintiff decree-holder applied to the Subordinate Judge of Patna for execution of the decree obtained in the High Court, he asked that the widow of Basant Lal should be substituted in his place and that execution should proceed against her. The widow objected, saying that Basant Lal had died before the decree of the High Court and- as no heir was substituted before that decree was made, execution could not proceed against her in the Court of the Subordinate Judge.
2. The learned Subordinate Judge declined to go into the question whether Basant Lal had in fact died before or after the decree of the High Court and held that it was the, duty of the objector to go to the High Court and apply for an amendment of the decree. The widow now appeals to us.
3. In our opinion the learned Subordinate Judge was quite wrong. Under Section 47 of the Civil Procedure Code, where a question arises as to whether any person is or is not the representative of a party, such question shall be determined by the executing Court.
4. Here the objection was that Basant Lal was not a party to the suit at the time it was decreed and, therefore, the question as to whether the execution can proceed against the widow of Basant Lal is a question which it was competent for the learned Subordinate Judge to determine.
5. The case, therefore, will go back, the order of the learned Subordinate Judge is set aside and be must determine whether the execution can proceed against the appellant. The appeal will be decreed with costs, which we assess at Rs. 16 (Rupees sixteen only).
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