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2012 DIGILAW 202 (CHH)

Prakash Dhimar v. Kamal Kumar

2012-08-09

A.K.Shrivastava

body2012
ORDER 1. By this petition under Article 227 of the Constitution of India, the petitioners are challenging the validity of the impugned order dated 8-10-2009 passed by learned Executing Court in Execution Case No. 35-A/1999, whereby the objections raised by the judgment debtors/petitioners have been rejected. 2. The facts necessary for the disposal of this petition are that a suit for removal of the encroachment was filed by the respondent Nos. 1 to 4. The suit was decreed. According to the decree-holders/respondent Nos. 1 to 4, the defendant Nos. 1 to 8 have encroached upon the bylane of the highway, as a result of which their approach to the bylane from his house has been totally obstructed. 3. Learned Trial Court framed Issue Nos. 5 and 6 specifically whether the defendant Nos.2 to 8 have encroached upon the bylane of the highway, as a result of which the plaintiffs are facing great difficulty to approach the highway on account of the said encroachment. After recording the evidence of the parties, the suit of plaintiff was decreed against the defendant Nos. 5, 7 and 8, namely, Prakash Dhimar, Hariram and Raghuvar Jamadar. The petitioner No.3 is said to be the adopted son of 8th defendant-Raghuvar Jamadar. When the decree was put to execution, an objection was raised on behalf of the judgment-debtors that the decree has been passed against dead person, since before passing the judgment and decree, 8th defendant-Raghuvar had died and without bringing the L.Rs. on record, the decree, which has been passed against a dead person and thus, it is null and void. This objection was opposed by the decree-holders. 4. The learned Executing Court dismissed the objections and directed to execute the decree. In this manner, this petition has been filed. 5. The contention of Shri Shah, learned Counsel for the petitioners is that since 8th defendant-Raghuvar had died long back on 15-11-2001, when the suit was pending, therefore, the judgment and decree of learned Trial Court, which was passed on 13-8-2004 was against a dead person and if that would be the position the decree cannot be executed. 6. However, Shri Akhilesh Jain, learned Counsel for the decree-holder argued in support of the impugned order and submitted that while deciding Issue Nos. 5 and 6 categorically it has been held by Executing Court that defendant Nos. 6. However, Shri Akhilesh Jain, learned Counsel for the decree-holder argued in support of the impugned order and submitted that while deciding Issue Nos. 5 and 6 categorically it has been held by Executing Court that defendant Nos. 5, 7 and 8 have encroached upon the particular piece of land, the description whereof has been mentioned in the impugned order, and therefore, their encroachment should be removed. Learned Counsel further submits that deceased- Raghuvar was arrayed as defendant No.8 in the suit arid he was served with the summons of the suit, however, he did not remain present in the Trial Court, therefore, vide order dated 28-8-1999, he was proceeded ex parte and thereafter, on 15-11-2001, he had died and if that would be the position, in terms of Order XXII Rule 4 (4) of the CPC, it was not necessary to bring the L.Rs. of deceased-defendant, who was proceeded ex parte. Learned Counsel has also invited my attention to Para 5 of the judgment of the Trial Court dated 13-8-2004, wherein it has been mentioned that which of the defendant has encroached upon how much area of the public bylane approaching the highway. Hence, it has been putforth by learned Counsel that the decree is also executable against the L.R. of deceased-defendant-Raghuvar. Learned Counsel further submits that in the execution proceedings, the L.Rs. of Raghuvar has been brought on record and he is petitioner No.3 in this petition. 7. Having heard learned Counsel for the parties, I am of the view that this petition deserves to be dismissed. 8. On bare perusal of the judgment dated 13-8-2004 passed by the learned First Civil Judge, Class I, Khurai in Civil Suit No.3 7-A/1999, it is gathered that Raghuvar was arrayed as defendant No.8. On bare perusal of the judgment, it appears that said Raghuvar did not file any written statement. Undisputedly, Raghuvar was proceeded ex parte on 28-9-1999, since he did not appear and an ex parte decree was passed against him while decreeing the suit of plaintiffs. Thus, according to me, if the said defendant, who was proceeded ex parte and he had died later on 15-11-2001 and if his L.Rs. were not brought on record, the decree would not become otiose or unexecutable on the ground that it has been passed against dead person. Thus, according to me, if the said defendant, who was proceeded ex parte and he had died later on 15-11-2001 and if his L.Rs. were not brought on record, the decree would not become otiose or unexecutable on the ground that it has been passed against dead person. In this regard, rightly, the Order XXII Rule 4(4) of the CPC has been relied by learned Counsel for the respondents/decree-holder. Since, Raghuvar was proceeded ex parte in the suit and there is an ex parte decree against him, which is executable, therefore, the learned Executing Court rightly rejected the objections of judgment debtor. 9. For the reasons stated hereinabove, I do not find any merit in the petition. The same is hereby dismissed. No costs. Petition Dismissed.