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Scope of execution proceedings

(Querist) 21 December 2009 This query is : Resolved 
question was missunderstood hence posting again with details...

In our Muslim partition suit, Preliminary decree dated 1970, Our grandmother was entitle for 1/17 share as per Preliminary decree.

Our Grand mother died in the year 1979 and her only Son had predeceased her in the year 1973.

There is no mention of Predeceased son’s Children in the preliminary decree, so no question of going against preliminary decree, they were brought on record only at the time of filing of Final decree petition in the year 1985,Final decree proceedings is still pending and adjourned for next month.

As in preliminary decree schedule there are two type of properties

1) Town properties 2) Revenue Properties,

For the One of the part of Preliminary decree Schedule, that is for town properties, a muncipal commissioner was appointed and the town properties were divided as per decree in the year 1995 and based on the Final order in this pending Final decree proceedings the parties aggrieved filed RFA in the high court the court upheld the order of lower court for division town properties.

Point to be noted: Part of the preliminary decree i.e. only for town properties a final order was passed in 1995 in the same pending Final decree Proceedings.

Now the other part or the second part of Preliminary decree for revenue lands yet to be divisioned based on the preliminary decree and is still pending in the same final decree proceedings, and adjourned for next month.

And also for the 1st part of decree of town properties on which court pass order in this pending final decree proceedings Some parties have file Execution proceedings based on the final order of this final decree court, for taking position by and is pending from the year 1995.

Our grandmother has got some 3 properties in the town properties allotment as per preliminary decree,

The town properties are still in joint khata of her legal heirs that is

1) 1st daughter

2) 2nd daughter and

3) children of predeceased son of our grandmother.

As our grand mother has 3 children, 2 daughters who survived her and a predeceased son with 2 children one son and 1 daughter.

My question :- Since the execution proceedings for 1st part of same final decree proceedings for town properties is still pending,

1) We have not objected on the earlier occasion when these predeceased sons children were brought on record along with the daughters while filing final decree petiton and also we did not object at the time when town properties were allotted in joint names, we want to take up this issues now.

As a partition suit by law is pending till the Final decree proceedings is completed and this execution has arisen from the same pending final decree proceedings, even though we have not filed our objections when these execution proceedings started in 1995. We can do this now.

Since this question is based on Mohammedan law point it seems it can be taken up any stage of proceedings as persons who are unnecessary and improper parties don’t get any right just because they on record, even if the properties allotted to them jointly, it will not create any right to them and there is no question of esstoppel here.

2) Since the Bailiff has given positions of the town properties to all legal heirs of our grandmother including the children of predeceased son who are not entitle for share for which we had not questioned at the time of allotment or order

now we want to take back the given position given to these Predeceased sons children in this execution proceedings by Filing an I.A under Section 47, as it says

47. Questions to be determined by the Court executing decree

(1) 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.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

3) Can this be done in Execution proceedings.

4) Or we have to file seperate suit to delete the names these predeceased sons children from the joint Khata of the alloted town properties and take back the poistion given wrongly.
niranjan (Expert) 21 December 2009
At the very outset I would say,that you should have filed appeal against partial final decree. But now if predeceased son children are not entitled to share,you can raise this issue by filing objection to the execution petition. This is question of law and it can be raised in the execution petition.This would not amount going behind the decree.However I would like to know what other experts think.

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