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2001 DIGILAW 97 (PNJ)

Mahesh v. Ashok Kumar

2001-01-17

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This is a Civil Revision directed against the order dated 8.3.1999 passed by the Civil Judge, Junior Division, Gurgaon (the Executing Court), which dismissed the objections of Mahesh Judgment Debtor (defendant No. 2 in the main suit). Some facts can be noticed in the following manner :- "One civil suit No. 186 of 1985 was filed by Surjan, Smt. Sheo Bai, Smt. Lodha Bai, Smt. Bharbari, Smt. Ratta Bai and Smt. Chando. The plaintiffs are the son and daughters of Nathu. The suit was filed against Smt. Kamal Bai and Mahesh Singh. The suit was decreed on 27.9.1990 and a decree for possession was passed." During the pendency of the suit, name of Surjan as plaintiff No. 1 was deleted and struck off his application vide order dated 28.11.1988 thus, the suit proceeded on behalf of Smt. Sheo Bai and her four daughters. The Decree Holder filed an execution petition and claimed possession. Execution was filed by Ashok Kumar claiming himself to be the transferee of Smt. Lodha Bai and LR of Lodha Bai against Smt. Kamal Bai and Mahesh Singh. Mahesh Singh is in actual physical possession of the land in question. He filed objections against the decree on the plea that the decree is nullity. It has been obtained only in the name of a dead person Smt. Lodha Bai. Other plaintiffs i.e. sisters of Smt. Lodha Bai have not filed the execution. Therefore, the execution cannot proceed at the instance of Ashok Kumar, who in fact, is a legal representative of Smt. Lodha Bai. In short, the grouse of the objector Mahesh Singh is that the execution has been filed on behalf of the LR of a person who is dead as the suit was filed in the name of Smt. Lodha Bai. Since the other decree holders have not filed the execution, therefore, the LRs of Smt. Lodha Bai cannot ask for possession." 2. The objections of Mahesh Singh were resisted by the applicants of the execution application. The trial Court dismissed the objections vide the impugned order and thus Mahesh Singh aggrieved by the impugned order has come in the present revision. 3. I have heard the learned counsel for the parties and with their assistance have gone through the record of this case. 4. The trial Court dismissed the objections vide the impugned order and thus Mahesh Singh aggrieved by the impugned order has come in the present revision. 3. I have heard the learned counsel for the parties and with their assistance have gone through the record of this case. 4. It is the basic principle of law that the Executing Court cannot go behind the decree. The specific objection of the Mahesh Singh is that Smt. Lodha Bai died on 20.12.1984 even much prior to the filing of the suit in the year 1985 and in these circumstances, the suit itself was bad institution because it had been filed in the name of a dead person. On these premises, Mr. Jain submitted that when a decree in favour of a dead person is nullity, the alleged execution cannot proceed on the behest of LR of a dead person. 5. On the contrary, the learned counsel for the respondent has vehemently denied the submission of Mr. Jain and argued that the suit was validly instituted in the name of Smt. Lodha Bai, who was alive alongwith her sisters and brother Surjan. Be that as it may, in my opinion, the Executing Court ought to have framed a specific issue with regard to the death of Smt. Lodha Bai and then to decide the objections in the light of that issue. If Smt. Lodha Bai was dead on the date of institution of suit, any decree in her favour will be considered as a nullity and her LRs will not be in a position to execute the decree as they have no locus standi to file the execution application. Such execution application may be filed on behalf of other decree holders, whs were alive on the date of institution of the suit. It is not the controversy in the present execution. 6. In this view of the matter, this revision is allowed and the impugned order is set aside and the case is remanded back to the Execution Court with a direction to frame a specific issue with regard to the death of Smt. Lodha Bai and then to decide whether execution application can proceed further or not. The Executing Court shall try to dispose of the controversy between the parties within a period of six months from the date of a copy of this order. The Executing Court shall try to dispose of the controversy between the parties within a period of six months from the date of a copy of this order. The parties are directed to appear before the Executing Court on 12th February, 2001. The Execution Application stands restored for the time being. Revision allowed.