9911796707
TMI Blog1972 (9) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... din who died on June 26, 1961, leaving behind him, the appellant his son, Sharfuddin, respondent No. 6 in Esa 9 of 1972, Pukhraj Begum, widow of his pre-deceased son who is respondent No.1 in both the appeals and her children respondents Nos. 2 to 5 in both the appeals. On June 25, 1968, Pukhraj Begum and her children respondent Nos. 1 to 5, and Shahabia Begum the appellant as plaintiff Nos. 1 to 6, files a suit for a partition of a house against Sharfuddin on May 18, 1970, a preliminary decree for partition was passed declaring the shares of the parties as follows: Shahabia Begum-2/16th; Sarf-ud-din-7/16th; and the respondents Nos. 1 to 5-7/16th. A local commissioner was appointed to effect partition, who reported that the property was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection dated December 8, 1970 under Section 47 and 151 to the code of Civil procedure the main point involved in the objections filed by both was common, viz. that the sale effected in pursuance of the aforesaid final decrees was without jurisdiction as the final decree itself not having been engrossed on the requisite stamp paper was defective and unenforceable. Both objections were, however, dismissed on April 29, 1972 by two separate orders. The appeals were likewise dismissed by the Additional District Judge again by two the aforesaid objectors have filed two separate second appeals as mentioned above. 5. Mr. V. B. Andley, appearing on the behalf of Shahabia Begum in Esa 9 of 1972, whose arguments were adopted by Mr. Gauri Shankar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Stamp Act. 7. Mr. S. I. Bhatia, the learned counsel for the respondent for the submitted that the property which was joint was the house. Which was ordered to be auctioned without being partitioned. The shares of parties concerned had been declared and the sale proceeds when recovered were to be given over to him proportion to their shares so fixed. There was, accordingly no orders for effecting a partition of the property in suit and the final decree according to Mr. Bhatia could not be said to be an instrument of partition this contention however is not correct. The decree direction the sale of the house and the division of the sale proceeded and final order effecting a partition there would have been no occasion for ordering sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been taken on such instrument. (See judgment). In Gopi Mal v. Vidya wait Air 1942 Lah 260 (FB) the Full Bench of the Lahore High Court came to the conclusion that final decree which is not a decree passed by a court without having jurisdiction to pass it. The Full Bench observed. There is still no lack, of inherent jurisdiction, though there might be an irregularity or illegality in the exercise of jurisdiction.. ......, while there is not a decree that can be acted upon, there is a decree which may be at any moment, by the provision of the stamp, be validated. The full bench summed up the position thus. There is no lack of inherent Jurisdiction in the executing Court, to act a upon the decree, that is to execute it; but there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court ordering the issuance of cheques to the parties concerned for the amounts due to the them in accordance with their shares already fixed, on their filing receipts. The delivery of possession of property purchased in the execution sale, according to him, is not a question relating to the execution, discharge or satisfaction of the decree; and the application for that purpose he said, was not an application in execution proceedings. But, whatever be the nature of the fact proceeding and irrespective of the fact that execution proceedings have or have not come to an end, the appellant cannot be prevented from raising the objection that the order directing sale of property and distribution of sale proceeds was without jurisdiction and, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional District Judge, as also the executing Court, therefore, were not justified in dismissing the objections of the appellants, Shahabia Begum and Sharf-ud-din. 11. Accordingly, the appeals are accepted; and as the two orders dated April 29, 1971 passed by the learned Additional District Judge and also the orders passed by the execution Court, dismissing the objections of Shahabia Begum and of Sharf-ud-din, cannot be sustained, the same are set aside. In the result, the objections filed by Shahabia Begum and Sharf-ud-din are upheld. The entire proceedings, relating to the auction of the property in dispute being without jurisdiction are set aside and the sale certificate and the warrant of possession, which have been issued, are cancell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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