Scope of execution proceedings
Mohamed Ali
(Querist) 18 December 2009
This query is : Resolved
In our Muslim partition suit, Preliminary decree dated 1970, Our grandmother was entitle for 1/17 share as per decree.
As in our decree schedule there are two type of properties
1) Town properties 2)Revenue Properties ,
hence pending final decree proceedings were divided into two parts and the final decree proceedings is still pending from 1985.
For the 1st part, 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 order some people filed RFA in the high court and the appeals were dismissed the court upheld the order of lower court order, the second part of final decree proceedings for revenue land division is still pending and adjourned for next month.
And also for the 1st part of decree that is for town properties, Execution proceedings is pending from the year 1995.
As our grandmother has got some 3 properties in the town properties allotment as per 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 part of same final decree proceedings for town properties is still pending,
1) Can we file an Intelocutary Application now in the pending execution proceedings, to delete the the names of predeceased son children from Khata of the already alloted town properties in 1995 as they are not entitle for any share in our grand mothers property as per Mohameddan law, Since the Khata of Town properties is in the name of 2 daughters and predeeased son children, we want the khata to be changed in the name of only 2 daughters by deleting the names of predeceased son children by the order of court.
2) Since it is a Partition suit which is pending till it is completed,and we are not going against final order of court with respect to share town properties ,
it is only the question of deletion of names of Legal heirs who also wrongly representing in one branch along with other heirs, as we are not going against decree. it is only based on point of law
3) Can this be done in Execution proceedings.
niranjan
(Expert) 18 December 2009
If in the preliminary decree,predeceased son children are given share,you cannot delete their name in the execution proceedings,except they relinquish their share.And the executing court cannot go behind the decree.
adv. rajeev ( rajoo )
(Expert) 18 December 2009
Execution proceedings are to exeute the order/judgement and decree now u cannot file an IA
Guest
(Expert) 18 December 2009
The execution court can decide the issues arising out of decree in the course of execution. Its a fine area. If your prayer in the execution proceedings is not in the nature of challenge to the decree, then, you can file the IA and the executing court can decide your application. It needs to be carefully presented and pleaded. Its my opinion. It is wrongly understood that the executing court can only pass an order of attachment, giving police protection if sought for and nothing more. But, the executing court can deal with all incidental matters in the course of execution. Its my opinion.
Raj Kumar Makkad
(Expert) 18 December 2009
This is not the issue which arose during the course of decree and execution rather it is the share given to the children of a predeceased son of your grandmother, though wrongly given but it has not been challenged by you though it has also seen the face of High court and still you do not want to disturb the decree passed so there is no occasion with the executing court to go beyond the decree.
You cannot delete the names of the children of a predeceased son of your grandmother in the given cirumstances.
