H.C. Shastri vs Dolphin Canpack (P) Ltd.
1997 Latest Caselaw 581 Del

JUDGMENT

Manmohan Sarin, J.

 (1) By this common order the following interim applications are being disposed of:    IA.11883/95 under Order 1 Rule 10, CPC; IA. 11882/95 under Order Xxxix Rules 1 & 2, CPC; IA. 11881 under Order Xxii Rules 1 & 4, CPC; IA. 4230/96 under Order XXIII Rule 3 read with Section 151, CPC; IA. 12160/96 under Order Vi Rule 17, Civil Procedure Code and IA. 12838/96 under Section 47 CPC. These applications are moved by Smt.Vandana Goyal on behalf of Master Vinay Prakash Goyal as his next friend and mother and/or for him and self (hereinafter referred to as `applicants/intervenors').  

(2) Before dealing with the specific prayers made in the above applications and the reliefs sought by the applicant/intervenors, it would be necessary to briefly set out the facts leading to the filing of the above applications.  

(3) The basic premise on which these applications are based is the claim of Mrs. Vandana Goyal that she is the legally wedded wife of Late Shri S.P. Goyal, defendant No. 2 in the main suit. Further that Master Vinay Goyal is the son born from the said marriage and is one of the legal heirs entitled to the estate of Late Shri S.P. Goyal. This position is strongly refuted by the legal heirs of Late Shri S.P. Goyal, on record in suit, viz. his widow, son and five daughters, who deny the factum of the alleged marriage of Shri S.P. Goyal with Mrs. Vandana Goyal.  

(4) The suit viz. S.No. 2547/93 had been filed by one Mr. H.C. Shastri, plaintiff against the defendants, for recovery of Rs. 58 lakhs. Defendant No. 1, M/s. Dolphin Canpack Pvt.Ltd., is a company originally promoted by Late Shri S.P. Goyal and his family members. Shri S.P. Goyal, as a Director, had been imp leaded as defendant No. 2, while M/s. Asp Investments Ltd., with whom defendants 1 & 2 had deposited the amounts received from plaintiff, Shri H.C. Shastri, is imp leaded as defendant No. 3. Plaintiff's case being that it had advanced Rs. 34 lakhs by cheque and another Rs. 16 lakhs in cash vide receipt dated 27.6.1992 to defendant No. 1 through defendant No. 2, Shri. S.P. Goyal. One of the defenses taken in the suit by the defendants was that the plaintiff had advanced the money towards the purchase of shares of defendant No. 1 and the plaintiff's son and daughter in law, became directors of the company. Plaintiff in addition to the recovery of Rs. 58 lakhs sought an injunction against defendant Nos. 1 & 2 from realizing or withdrawing the amount of Rs. 50 lakhs deposited with defendant No. 3. The Court, while disposing of IA. 9776/93 in suit, directed the defendant No. 3 to deposit in Court the sum of Rs. 50 lakhs together with accrued interest at the rate of 18%. An Fdr was directed to be made of the said amount. Vide order dated 4.2.1994, the defendant No. 3 deposited Bank drafts in the name of the Registrar of this Court for the sum of Rs. 50 lakhs together with accrued interest at the rate of 18%. Plaintiff was permitted to withdraw Rs. 34 lakhs with proportionate interest on furnishing a bank guarantee, while defendant No. 1 was similarly permitted to withdraw Rs. 16 lakhs with proportionate interest on furnishing of bank guarantee.

(5) An appeal was preferred by defendant No. 1 against the said order. The Division bench, vide order dated 24.5.1995 stayed the operation of the impugned order.

(6) Parties to the suit, thereafter, on 13.10.1995, moved an application under Order Xxiii Rule 3 of the Code of Civil Procedure, viz. IA. 9549/95, for recording of a compromise. Simultaneously, the appeal preferred by defendant No. 1 was also withdrawn. An application was filed by the legal heirs of defendant No. 2 for bringing themselves on record and, thereafter, the settlement between the parties was recorded and the suit was disposed of in terms of the compromise. In terms of the settlement, the plaintiff was entitled to withdraw the entire amount of Rs. 50 lakhs with interest thereon. Defendant No. 1 and legal heirs of defendant No. 2 were not entitled to withdraw or receive any amount out of the aforesaid amount of Rs. 50 lakhs with accrued interest. In terms of the settlement, plaintiff gave up all his claim and that of his son and members of his family for directorship and shareholding of defendant No. 1. Plaintiff also gave up claim in respect of the land situated at Goyal Estate at Village Bijwasan, which he claimed had been agreed to be sold by defendant No. 2 to him for Rs. 50 lakhs.

(7) While disposing of the suit, directions had been given on 13.10.1995 for release of Fdr No. 730842/61/94-95 dated 27.4.1994 for Rs. 54,80,817.00 to the plaintiff. On 23.11.1995 applications were moved on behalf of the applicant/intervenors bearing Ia Nos. 11881 to 11883/95. As an interim measure, the Court directed that the amount of the fixed deposit be not disbursed to the plaintiff till 1.12.1995. The interim order was continued on 1.12.1995 and the interim applications were directed to be listed on 7.12.1995. On 7.12.1995 learned counsel for the plaintiff had raised objections to the maintainability of these applications, since the suit had already been disposed of. Without prejudice, it was submitted that even if the claim of the applicant was to be upheld, he would be one of the eight legal heirs of the deceased Shri S.P. Goyal and, at best, his share in the amount being disbursed would work out to approximately Rs. 7.5 lakhs. In these circumstances, a sum of Rs. 45 lakhs was directed to be released to the plaintiff with the balance amount being retained in the Court, pending disposal of the applications.

(8) As noticed earlier, the applicants' case, in brief, is that the plaintiff in collusion with the legal representatives of defendant No. 2, who are on record, viz. Shri Ravi Goyal, Mrs. R. Mani Goyal, Smt.Renu Bansal, Smt.Beena Goyal, Smt.Rekha Gupta, Smt.Nishi Goyal and Smt.Minakshi, deliberately and deceitfully, though having full knowledge of the applicant/intervenor Master Vinay Goyal being the legal heir of Late Shri S.P. Goyal, did not include him in the array of defendants. Mr. Dhawan, who earlier appeared for the applicant/intervenors argued that by a legal fiction the applicant/intervenors should be deemed to be parties to the proceedings in suit.

(9) On 6.12.1996, an application was filed on behalf of the applicant/intervenor seeking amendment of IA. 11883/95 i.e. application under Order I Rule 10 of the Code of Civil Procedure through Ms. Rachna Joshi Issar, Advocate. By the proposed amendment, the applicants now averred that they were claiming and were interested in the estate of Late Shri S.P. Goyal on the basis of a Will of the deceased, instead of intestate succession, as set out in the application under Order I Rule 10, CPC. Plaintiffs refuted and disputed the Will and the alleged affidavit of the appointed Executor and claimed the same to be fabricated, false and frivolous. The said application was taken on record observing that for the purposes of disposal of the application under Order I Rule 10, Cpc, whether the claim of the applicants/intervenors was based on either intestate succession or through a Will, may not be material.

(10) The applicant/intervenors also filed objections under Section 47 of the Code of Civil Procedure, viz. IA. 12838/96 to the compromise decree in suit, inter alia, seeking determination of their status as legal heirs/representatives of deceased defendant No. 2, in terms of sub-section (3) of Section 47 of the Code of Civil Procedure.

(11) Let us first take up for consideration IA. 11883/95, filed under Order I Rule 10, CPC; IA. 11882/95, filed under Order Xxxix Rules 1 & 2, CPC; IA. 11881/95 under Order XXIII Rules 1 & 4, Civil Procedure Code and IA. 4230/96 under Xxiii Rule 3, CPC. The last being an application for recalling the compromise recorded between the plaintiffs and the legal heirs on record of deceased defendant No. 2, as being unlawful. As noticed earlier in the narration, the applicants in IA. 11883/95 contend that Master Vinay Goyal was born on 31.8.1984 of the marriage of Smt.Vandana Goyal with the deceased defendant No. 2, Shri S.P. Goyal. Master Vinay Goyal is a minor and aged 11 years. The applicants rely on a birth certificate of the minor Vinay Goyal, wherein the name of the deceased defendant No. 2 is mentioned as the father. The applicants have also filed on record a power of attorney, issued in favour of Smt.Vandana Goyal by Late Shri. S.P. Goyal for prosecuting and defending litigation. Reference is also made to a letter to the Principal, Modern School, said to have been written by the deceased. The contention of the applicant/intervenors is that the other legal heirs, viz. Ms. Mani Goyal, Mr.Ravi Goyal and others had deliberately excluded them from being imp leaded in the suit although they were fully in the knowledge of the deceased's marriage with Ms. Vandana Goyal and the applicant Vinay being the son of the deceased. This had been done in collusion with the plaintiff so as to deprive the applicants of their share in the estate of the deceased defendant No. 2, Late Shri S.P. Goyal.

(12) Learned counsel for the applicants contends that the compromise entered into by the plaintiff with the legal heirs of deceased defendant No. 2 is unlawful and fraudulent as it sacrifices and prejudices the interest of the applicant/intervenors in the estate of the deceased. It is stated that the agreement is a part of the conspiracy to take away the interest of a minor and this Court is obliged to consider the pleas of the applicants and declare the compromise as unlawful in terms of proviso to Rule (3) of Order Xxiii of the Code of Civil Procedure. Reliance in this connection is placed on the decision in Banwari Lal Vs. Chando Devi . The Apex Court in the said case held that the Court could entertain an application of a party alleging that the compromise was not lawful. This was a case where the allegation was that the counsel for the plaintiff had cheated the plaintiff and withdrawn the suit in terms of the settlement without instructions and in collusion with the defendants. The case is clearly distinguishable.

(13) Reply to the application has been filed by the plaintiff and the legal heirs of defendant No. 2. It is contended that an application under Order I Rule 10, Civil Procedure Code is not maintainable as the suit already stands disposed of in terms of the compromise lawfully entered into. The Court has become functu officio and the only proceedings pending are for the delivery of the cheque, which is a ministerial act. It is contended that Smt.R.Mani Goyal was the legally wedded wife of the deceased defendant No. 2, which fact is not disputed even by the applicant/intervenors. The alleged marriage between the deceased defendant No. 2 and Ms.Vandana Goyal is denied and further the factum of Master Vinay being the son of the deceased is also denied. It is contended that Ms.Vandana Goyal was married to one Dilip Majumdar on 25.5.1970 and out of her marriage with the said Mr.Dilip Majumdar a son Nilanjan, daughter Smita and son Vinay were born on 29.8.1971, 26.1.1978 and 13.1.1984 respectively. It is stated that it was only on 28.2.1986 that Ms. Vandana Goyal obtained a decree of divorce from Mr.Dilip Majumdar. Master Vinay was, therefore, born during the subsistence of the marriage of intervenor Ms. Vandana, with Mr. Dilip Majumdar.

(14) In the detailed written submissions filed on behalf of Mrs. R. Mani Goyal, Mr. Ravi Goyal and others, reference has been made to the proceedings before the Civil Judge, Ghaziabad, who had initially rejected the application filed under Order Xxii Rule 4, Cpc, moved by the applicant/intervenors in the pending suits. The case was then remanded back by the High Court in revision to the Civil Judge, Ghaziabad, before whom evidence is being recorded. Learned counsel for the legal heirs of deceased S.P. Goyal, in the written submissions, attempted to point out a number of contradictions in the statements of intervenor's witnesses as well as in the deposition of Smt.Vandana Goyal to urge that there was no marriage between Ms.Vandana Goyal and Mr. S.P. Goyal. However, it is not necessary to go into these arguments/submissions, having regard to the basic plea raised by learned counsel for the plaintiffs that the compromise decree in suit, to which the applicants are objecting and wherein the applicant/intervenors are seeking impleadment, does not involve any payment out of the estate of the deceased. It relates to a settlement in respect of the claim of plaintiff for monies advanced to defendant No. 1 company.

(15) It would be relevant at this stage to consider the nature of the suit which had been disposed of. Plaintiffs filed the present suit for recovery of Rs. 58 lakhs together with interest, against the defendants, and sought a decree against defendants 1 & 2. An injunction was also sought against defendants 1 & 2 from receiving or withdrawing the amount of Rs. 50 lakhs from defendant No. 3 in lieu of the post-dated cheque already issued by defendant No. 3 in favour of defendant No. 1. The plaintiff's allegation was that it had advanced, on various dates, a sum of Rs. 50 lakhs to the defendant No. 1 company, M/s. Dolphin Canpack Pvt.Ltd. Defendant No. 2 was the Director of defendant No. 1 and had executed the receipts and received the amounts on behalf of defendant No. 1. Out of the sum of Rs. 50 lakhs, Rs. 16 lakhs was claimed to have been paid in cash, for which receipt was executed by defendant No. 2 on behalf of defendant No. 1 and for which a confirmation note had also been issued by defendant No. 1. The said amount of Rs. 50 lakhs was invested by defendant No. 1 company in a deposit for interest with defendant No. 3.

DEFENDANTS1 & 2 filed the written statement wherein it was contended that the sum of Rs. 34 lakhs had been paid by the plaintiffs towards the share money and the shares had been allotted to the plaintiff and his family members. The plaintiff's son had been made a Director of the Company. It was denied that the amount was given as loan. The receipt of Rs. 16 lakhs in cash was also denied by the defendants. As noticed earlier, the learned Single Judge of this Court had directed the defendant No. 3, with whom the amount was lying, to deposit the sum in Court, out of which Rs. 34 lakhs with proportionate interest was directed to be withdrawn by the plaintiff, subject to guarantee being furnished and the balance Rs. 16 lakhs with proportionate interest was permitted to be received by defendant No. 1, on bank guarantee being furnished.

(16) Appeals were filed by both the parties against the said order. It is at this stage that the compromise petition under Order Xxiii Rule 3 of the Code of Civil Procedure was moved. Before we analyse the terms of the compromise entered into by the parties, one thing which clearly emerges is that the parties were at adidem that the money that was allegedly lent, as per the plaintiffs, and paid as share money, as per the defendants, was to the account of defendant No. 1 and not advanced to defendant No. 2 in his personal capacity. Defendant No. 2 was imp leaded as a party since he had signed the documents and there were allegations of cash having been paid to defendant No. 1 through him. Defendant No. 2, who signed the written statement, did not even claim that the amount advanced belonged to him or that the amount deposited with defendant No. 3 belonged to him and not defendant No. 1. The defendants did not prefer any counter claim. Learned counsel for the plaintiff, in these circumstances, argued that defendant No. 2, who was a mere shareholder, can have no right or share in the property of the company. The right of shareholder is confined to participating in the profits of the company and receive dividends, if any. The shareholder has no lien or rights over the assets of the company. Learned counsel, therefore, submits that the subject-matter of the suit was not the estate of defendant No. 2 in respect of which the applicant/intervenors are seeking impleadment.

(17) I find considerable merit in this submission of the learned counsel for the plaintiff. In terms of the compromise, Exhibit C/1, the plaintiff is to receive the entire amount of Rs. 50 lakhs that was lying with defendant No. 3 together with interest. It is the defendant No. 1 company which had reached this settlement and to whom the money had been advanced initially through defendant No. 2 and which had set up the defense of allotment of shares. The plaintiff in terms of the settlement has relinquished all his rights with regard to shares or participation in the management of the company. Simply because defendant No. 2, was the Director and a shareholder, the assets of the company cannot be regarded as forming part of the estate of deceased defendant No. 2. The deceased defendant No. 2 in the written statement did not claim any right to the suit amount dehors defendant No. 1. In fact, there is an admission of defendant No. 2 that the deposit did not belong to him but belonged to defendant No. 1. The said admission is binding on the legal heirs of deceased defendant No. 2. It is not permissible for the intervenor/applicant, who claims to be one of the heirs, to allege that the amount of deposit of Rs. 50 lakhs with interest due thereon was the estate of defendant No. 2. As noticed earlier, neither a shareholder nor a Director has any right in the property and assets of the company, which is a separate juristic entity distinct from the shareholders. The shareholder who buys shares does not buy an interest in the property of the company which is a juristic person, entirely distinct from the shareholder. The shareholder as an investor becomes entitled to participate in the profits of the company, and have a say in the management as per law. He can claim the left over assets of the company in case the company is wound up. This is also not a case where any element of public interest is involved so as to invoke the principle for lifting of the corporate veil to look at the real nature of the transaction. In any case, the compromise decree does not deal with or affect shares of defendant No. 2 in defendant No. 1. It is the plaintiff who has relinquished all his claims, rights and interest. Even assuming that the applicant/intervenor is taken to be a legal heir of the deceased defendant No. 2, he would have no locus standi or right in the assets of the company, i.e. the deposit amount, which the defendant No. 2 had admitted as not belonging to him but to defendant No. 1. In this view of the matter, it is not necessary to advert to the authorities cited with regard to the challenging a compromise decree on the ground of its being fraudulent or unlawful.

(18) As regards the submission of the applicant/intervenor that the compromise entered into is void and unlawful, the same is fallacious and has no basis. Explanation to Order Xxiii Rule 3 of the Code of Civil Procedure, no doubt provides that an agreement of compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the Rule. This is not a case where any of the parties to the compromise is challenging the same as vitiated by a fraud, misrepresentation, undue influence or coercion. It is the applicant/intervenor who is alleging the compromise to be void and unlawful on the ground that it was collusive and entered into without his presence. As discussed earlier in the preceding paragraphs, as regards the deposit, the same was claimed only by defendant No. 1 as an asset, it not being a part of the estate of defendant No. 2, the applicant/intervenor cannot have a grievance on that account. Besides the plaintiff and his family members relinquished all rights in the management and shareholding in defendant No. 1, since it was the case of defendants that the amount had been received towards the share money.

As regards the estate of defendant No. 2, although there was no relief sought in the suit, the compromise recorded that the plaintiff gives up all his rights with regard to seeking specific performance in respect of an alleged agreement to sell land at Bijwasan, belonging to defendant No. 2. The plaintiff had claimed that it had paid Rs. 45 lakhs as part of the sale consideration. The compromise in so far as the estate of defendant No. 2 is concerned, provides for the relinquishment of claim by the plaintiff for purchase of land under an alleged agreement entered into. This, obviously, cannot be regarded as prejudicial to the estate of defendant No. 2 or his legal heirs. Learned counsel for the applicant/intervenors had argued that the relinquishment of the claim of the plaintiff would operate only in favour of those legal heirs who are on record. The submission is totally misconceived as the plaintiff gives up his claim with regard to enforcement of an alleged agreement for the purchase of land belonging to defendant No. 2. The said relinquishment, undoubtedly, would enure to the benefit of the estate or to all those who are legal heirs of deceased defendant No. 2.

(19) Notice may also be taken of a submission made on behalf of the respondent that there was sufficient representation of the legal heirs of the deceased and even if one legal heir was left out, the validity of the said compromise cannot be challenged. Reliance is placed on the decision of the Apex Court in Harihar Prasad Vs. Balmiki Prasad . In this case, the Apex Court held that the plaintiff, who after due enquiry, had imp leaded the legal heir of a deceased defendant within time, there could be no abatement of the suit or appeal as the imp leaded legal heirs sufficiently represented the estate of the deceased. The Court held that the decision obtained with the legal heirs on record, binds not merely those imp leaded but the entire estate, including the interest of those not brought on record. Of course exception is made for fraud or collusion or cases which indicate that there has not been a fair or real trial. As discussed earlier, the compromise in question dealt with the assets of defendant No. 1 company and as regards the estate of defendant No. 2 prima facie it appears that it cannot be said to be vitiated by fraud or being prejudicial to the estate of defendant No. 2.

(20) From the foregoing discussion, it would be seen that the applicant/intervenors have failed to make out a case for impleadment as a necessary party in the compromise, which essentially dealt with the assets of defendant No. 1 company where the defendant No. 2 was a shareholder and, secondly, as regards the estate of defendant No. 2 the compromise only results in obtaining a relinquishment of the rights of the plaintiff under an agreement to sell with regard to remaining lands. More so, in the facts and circumstances of this case, viz. the factum, of the marriage of Vandana Goyal with the deceased being seriously disputed; the birth of the minor applicant taking place during the subsistence of the marriage of Ms.Vandana Goyal with one Mr. Dilip Majumdar and prior to her divorce; coupled with the fact that the intervenor/applicants are now seeking to propound a Will of the deceased in their favour, while the earlier applications seeking impleadment and assailing the compromise were based on intestate succession, it seems to be necessary for the said applicant/intervenors to establish their legal right as heirs of the deceased independently in separate civil proceedings. The suit already stands disposed of and in the execution proceedings only a ministerial act of handing over the cheque remains to be done. The applicants have failed to make out a case for impleadment or grant of injunction in respect of the implementation of a compromise dealing primarily with the assets of defendant No. 1.

(21) Let us now consider I.A. No. 12838/96 being objections under Section 47 and Section 151 of the Code of Civil Procedure to the execution of the compromise decree, filed by the applicant/objectors. The applicant/objectors seek setting aside of the compromise decree on the ground of its being fraudulent and having been entered into at the back of the applicant/objectors. The suit is sought to be re-opened and relegated to the position prior to the compromise. Stay is also sought of any action in pursuance to the compromise decree, pending adjudication of the objections. No formal notice was issued of this application, however, both the parties were heard and on request permitted to file detailed written submissions.

The factual matrix of the case as well as the rival contentions of the parties have been noticed and dealt with in the earlier part of the judgment. It is not necessary to recapitulate or repeat the common pleas and the findings and conclusion reached. However, certain pleas advanced specifically in relation to the objection petition are being noticed and dealt with.

The applicant/objectors urged that the plaintiff who was fully in the know of the applicant/intervenors being legal representatives of defendant No. 2 deliberately and fraudulently excluded them from the array of defendants. The appeal filed by defendant No. 2 before the Division Bench was also withdrawn only by the legal representatives, who are on record and not by the applicant/intervenors. The plaintiff is alleged to have committed forgeries with regard to an alleged agreement for the sale of land by defendant No. 2. The deceased defendant No. 2 had filed an application under Section 340 Cr.P.C. for the prosecution of the said forgeries. The plaintiff is claimed to have reached the compromise settlement with the legal representatives on record of defendant No. 2 to somehow avoid his prosecution. According to the intervenor/objectors it was this compelling need which led to the compromise being executed at the back of the applicant/objectors. Shri Rajiv Goyal, one of the legal representatives on record of defendant No. 2, is said to gain by the exclusion of applicant/objectors, as regard the estate of defendant No. 2. It is then averred that it was only after the filing of the impleadment application, that the objectors learnt from the executor of the Will made by defendant No. 2. Under the said Will, Smt. Vandana Goyal, the applicant/objector has been bequeathed, half the share in the land, which was made the subject matter of the compromise in the suit. Secondly, the property bequeathed to Shri. Ravi Goyal is subject to his paying a sum of Rs. 20 lakhs to the minor Vinay Prakash Goyal. Learned counsel for the objector, therefore, urged that it was just improper that the question of intervenor/objectors being the legal representatives of deceased defendant No. 2 is decided in these proceedings in terms of sub-section 1 and sub-section 3 of Section 47 of the Code of Civil Procedure. It is stated that these are questions arising between the legal representatives of the parties to the suit and relate to the execution of the compromise decree, which itself is assailed as being fraudulent. It is argued that the compromise was highly prejudicial not only to the interest of the intervenor/objectors but even against the interest of defendant No. 1 company. The proceedings for release of the cheque are in the nature of execution and the denial of the applicant/objector being the legal heir is half hearted. The claim of the petitioner is sought to be fortified by the Will.

In my view, the additional ground urged for the compromise decree being fraudulent and unlawful namely the non-prosecution of the application under Section 340 Cr.P.C. is devoid of merit. By the mere factum of non-prosecution by abandonment of such application, and inference of the compromise decree being unlawful cannot drawn. This is especially so when on a consideration and prima facie material on record, the decree cannot be said to be vitiated by fraud or being unlawful. Besides, in normal course when a settlement is reached, the non-prosecution and abandonment of the application under Section 340 Cr.P.C. is usually agreed to. Unless a case is made out for setting aside of the compromise decree on grounds of fraud or the compromise being unlawful and the challenge is entertained, an application for impleadment under Order I Rule 10 Cpc, after the disposal of the suit would not lie. There is also merit in the submission of the plaintiff/decree holder that the present application has been filed belatedly, when the case was reserved for orders. The applicant/objectors have not produced anything on record to show as to when they came to know of the alleged Will and the notice, if any received from the executors. It is also not understandable why the alleged Will was not propounded and put up by Smt. Vandana Goyal or the alleged executor. The controversy in the suit between the parties namely the plaintiff and defendant No. 1 as well as the legal representatives of defendant No. 2 was amicably settled by the compromise. The applicant/objectors took no steps to seek impleadment in the suit when it was pending. Sub-section 3 of Section 47 Civil Procedure Code is subject to and has to be read alongwith sub-section 1. The purpose of sub-section 3 is that when a decree is executed against a person alleged to be a legal representative of the judgment debtor and such a person disputes being the representative of the deceased judgment debtor and objects to the execution of the decree against him, the said question as to whether he is legal representative of the judgment debtor or not for the purpose of execution of the decree against him, is to be decided by the executing Court. Similarly, if any person seeks to execute the decree on the allegation that he is legal representative of the decree holder and as such is entitled to execute the decree but is objected to by the judgment debtor, the said question as to whether the said person is or not the legal representative of the decree holder is to be decided by the executing Court. There is no such dispute raised by the objector in their petition. The dispute sought to be raised by the petitioners is that they are also the legal representatives of defendant No. 2 but were not imp leaded and brought on record. The dispute raised by the objector is essentially an inter se between the legal representatives of defendant No. 2 and the objector Smt. Vandana Goyal, who asserts that by virtue of a Will alleged to have been left behind by Sh. S.P. Goyal, she has become representative/legatee of Shri S.P.Goyal. The case of intestate succession is now given up. This court would not embark into and hold an enquiry or full fledged investigation as to the Will propounded by the objector was executed by Shri S.P. Goyal or not or whether he was competent to execute the alleged Will. This question can only be decided either through a civil suit or a probate petition. The plaintiff is not at all concerned with the present dispute inter se between the legal representatives of Shri S.P. Goyal, who are on record and the objectors. Learned counsel for the plaintiff relied on Bhagabat Sahu Vs. Parbati Samal and Others , wherein the Court held that the objections of the judgment debtor that they were not properly represented and were not parties to the decree does not fall within the ambit of Section 47 of the Code of Civil Procedure and should be decided by a separate suit. Reliance was also placed on Smt. Kalabati and another Vs. Chandranarain Mandal and Others . The Court in this case declined to entertain the objections of a person not party to the decree claiming interest in decree and seeking to be added as a party decree holder in execution proceedings. The court held that such application cannot be decided in proceedings under Section 47 of the Code of Civil Procedure. In case of Shankar Lal and Others Vs. Shyam Sunder Lal , the Court held that a decision of a dispute between two sets of persons who are claiming to be the heirs of the deceased judgment debtor is not at all a dispute between the decree holder on the one side and the judgment debtor on the other. Hence Section 47 would not be applicable. In the case of Ithack Isaac and others Vs. Krishna Kurup Krishna Kurup and Others (AIR 1957 Travancore-Cochin 5), it was held that the words "for the purposes of this Section" in sub-section 3 of Section 47 of the Code of Civil Procedure clearly show that the sub-section is not independent of but is ancillary to sub-section 1 and, therefore, comes into operation only when there is a question arising between the parties to the suit or their representatives relating to the execution, discharge or satisfaction of the decree. It does not, therefore, apply to a case in which the question is between rival representatives of one party, the other party, decree holder in the present case, not having any interest in the said dispute. To similar effect is the decision in Rama Maruti Chaugule Vs. Mallappa Krishna Chaugule (AIR (29) 1942 Bombay 309).

From the foregoing authorities, it will be seen that the dispute between the present legal representatives of deceased defendant No. 2 and the present objectors claiming to be entitled to the estate of deceased either by virtue of intestate succession or Will, would not be a dispute or a question falling within the ambit of Section 47 (3) of the Code of Civil Procedure. The objections are not maintainable. In any case, in view of the findings as recorded in paras 19, 20 and 21 of the judgment, the objection petition, i.e. IA. 12838/96, has no merit and is liable to be dismissed and is so dismissed.

(22) In view of the foregoing discussion, the applications filed, viz. IA. 11883/95 under Order I Rule 10, CPC; IA. 4230/96 under Order Xxiii Rule 3 read with Section 151, CPC; IA. 11882/95 under Order Xxxix Rules 1 & 2, CPC; and IA. 11881/95 under Order Xxxii Rules 1 & 2 are liable to be dismissed and are dismissed. IA. 12160/96, being an application for amendment of the application under Order I Rule 10, Cpc, was disposed of on 6.12.1996 and the contents of the same have been considered while disposing of the application under Order I Rule 10, Cpc, and the objections under Section 47, CPC. The stay stands vacated and the balance amount lying deposited in Court be paid to the plaintiffs in terms of the order dated 13.10.1995.

(23) The observations made in this order are on a prima facie view of the matter for the disposal of the present applications and will not come in the way of the applicant/intervenors seeking a declaration or other appropriate remedy as admissible at law.