IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.922 of 2001 ================================================= 1.Shailendra Kumar Yadav. 2.Hemendra Kumar Yadav. 3.Amarendra Kumar Yadav. All Sons of Late Indradeo Pd.Mahto. 4.Smt. Lalita Devi, D/o of Late Indradeo Prasad Mahto, Wife of Late Indra Kumar Yadav, all residents of village- Jalalpur,P.S.- Patori, District- Samastipur. --Plaintiffs-Decree Holders-Opp.Parties—Petitioners. Versus 1.Smt.Siya Devi , W/o Late Shambhu Prasad Mahto. 2.Pratibha Devi, D/o of Late Shambhu Pd.Mahto, Wife of Bishundeo Prasad Yadav. 3.Pratima Devi, D/o of Late Shambhu Pd.Mahto, Wife of Bindeshwari Prasad Yadav. 4.Shashidhar Pd.Yadav @ Shashidhar Mahto ,Son of Shambhu Prasad Mahto. All residents of village- Jalalpur, P.S.- Patori, District- Samastipur-Defendants-Judgment Debtors- Petitioners-Opp.Parties Ist Set. 5.Sumitra Devi, wife of Late Rajendra Prasad Mahto,. 6.Dinesh Chandra Mahto. 7.Avinash Chandra Mahto. Both Sons of late Bishundeo Mahto. 8.Arvind Mahto, Son of Dinesh Chandra Mahto. 9. Smt. Kaushalya Devi. 10.Leela Devi. Patna High Court C.R. No.922 of 2001 dt.18-11-2011 2 Both daughters of Late Ram Babu Mahto. 11. Lally Mahto, Son of Sahdeo Mahto. 12.Harishchandra Mahto, son of late Bishundeo Mahto. 13.Sahdeo Mahto, Son of Ram Babu Mahto. 14.Satyendra Matho. 15.Gajendra Mahto. 16.Narendra Pd.Mahto. 17.Birendra Pd.Mahto. All Sons of Late Jai Lal Mahto. 18.Ravi Shankar Mahto, Son of Harishchandra Mahto. 19.Shashi Bhushan Mahto, Son of Sahdeo Mahto. 20.Akhileshwar Mahto @ Akhu Mahto, Son of late Ram Babu Mahto. 21.Rukmini Devi, W/o late Lal Babu Mahto. All residents of village-Jalalpur,Pargana Balagachha, Police Station- Patori, District-Samastipur. Defendants-Judgment Debtors-Opp.Parties—Opp.Parties ----2nd Set—Opp.Parties. ---------- Appearance : For the Petitioner/s : Mr. Sunil Kumar Thakur, Adv. For Opp.Parties: Mr.Ashutosh Ranjan Pandey, Adv. PRESENT HONOURABLE MR. JUSTICE VIJAYENDRA NATH V.Nath ,J. Heard the learned counsel appearing on behalf of the petitioners as well as the learned counsel appearing on behalf of the opposite parties. 2. This civil revision application has been filed Patna High Court C.R. No.922 of 2001 dt.18-11-2011 3 by the petitioner against the order dated 02.12.2000 passed in Misc.Case No.25/83 by which the learned court below has allowed the prayer of the judgment debtor opposite party in Execution Case No.01/82 and held that the execution case for realization of the amount as prayed is not maintainable. 3. The parties are in agreement that the Partition Suit No.09/34 had been filed for partition of the joint family properties and a preliminary decree was passed on 11.03.1985 therein. On the petition of the decree holder, the final decree was prepared on 17.03.1981. Thereafter the decree holder filed Execution Case No.01/82 praying for delivery of possession as well as for realization of Rs.39, 828.50 Paise from the judgment debtor. Later on, the parties agreed that they had got possession of the land of the respective shares and thereafter the execution case proceeded only with regard to the realization of the decreetal amount. 4. A petition under Section 47 C.P.C. was filed in the execution case by the judgment debtor praying to hold that the execution case for realization of the amount of Rs.39.828.50 Paise was not maintainable Patna High Court C.R. No.922 of 2001 dt.18-11-2011 4 and the decree is not executable for the said relief. On the said petition Misc.Case No.25/83 was registered and both the parties were allowed to lead their respective evidence in support of their contentions. The learned court below, after examining the evidence including the final decree of T.S.No.09/34 and the documents forming part of the said decree, has come to the conclusion that there is no ambiguity in the final decree. The learned court has also found that the final decree with respect to movable properties was only “notional, hypothetical, declaratory and unexecutable” and on the basis of this finding allowed the miscellaneous case by the impugned order and dropped the execution case. 5. The learned counsel appearing on behalf of the petitioners has submitted that the movable properties were subject matter of the partition suit and as the judgment debtor was the Karta of the family, the said movable properties remained with the judgment debtor. It has been further contended that the documents accompanying the final decree will show that the movable properties have also been partitioned and as such the judgment debtor, as the Karta in custodian of Patna High Court C.R. No.922 of 2001 dt.18-11-2011 5 those movable properties, is liable to pay the amount of movable properties to the decree holder. Per contra, the learned counsel appearing on behalf of the opposite parties has submitted that there is no finding that the opposite party was the Karta of the joint family and such a dispute cannot be determined at the execution stage. The learned counsel has further urged that there is no direction in the final decree for payment of the amount sought to be realized by the decree holder from the judgment debtor and as such the execution case itself was not maintainable and has been rightly held so by the impugned order. 6. After perusing the impugned order it appears that the learned court below has given a finding that the partition of the movable properties was only notional and declaratory with further finding that there is no ambiguity in the final decree in that regard. During the course of the submission also the learned counsel appearing on behalf of the petitioners could not show any such direction contained in the final decree regarding payment of the amount sought to be realized from the opposite parties (judgment debtor) by way of execution Patna High Court C.R. No.922 of 2001 dt.18-11-2011 6 of the decree. In view of the finding of fact recorded by the learned court below, there appears to be no legal infirmity or error of jurisdiction in the impugned order whereby it has been held that the execution case cannot proceed and consequently has been dropped. 7. For the foregoing reasons, this revision application is dismissed. ( V. Nath, J.) Patna High Court, Patna. The 18th of November, 2011. N.A.F.R./Nitesh