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2012 DIGILAW 587 (UTT)

ANANDMAYEE SANGH v. NEELAM JOSHI

2012-09-18

B.S.VERMA

body2012
JUDGMENT [Hon’ble B.S. Verma, J. (Oral)] Heard Sri L.P. Naithani, Senior Advocate, along with Sri Sudhir Kumar, Advocate for the revisionist, Sri M.C. Pandey, Senior Advocate, assisted by Sri R.S. Bisht for respondents 1/1 to 1/4 and Sri Chandra Mauli Sah, Advocate on behalf of respondents 3 and 4. 2. Learned counsel appearing on behalf of both the parties have agreed that the writ petition may be disposed of without counter version. 3. Appeal from Order No. 447 of 2012 (now Civil Revision No.77/2012) is directed against the order dated 11-9-2012, passed by Civil Judge (S.D.) Haridwar whereby the application 33-C/2 filed under Order 38 Rule-5 C.P.C. has been rejected. 4. Briefly stated the facts of the case giving rise to this writ petition are that appellant/plaintiff filed suit No. 23/2008 against Chandra Sekhar Joshi. Application 33-C/2 was also moved with the prayer that the defendant No.1 Chandra Sekhar Joshi is going to dispose of the property and it would be difficult to recover the decretal amount if the property is sold by the defendant No.1. 5. During the pendency of the suit defendant No.1 Chandra Sekhar Joshi has died and he was substituted by his legal heirs respondents 1/1 to ¼. Respondent No.1/1 Smt. Neelam Joshi is widow of Chandra Sekhar Joshi and respondents ½ to ¼ Km. Vaishali Joshi, Km. Maneesha Joshi and Km. Baby are the minor daughters of late Chandra Sekhar Joshi. The minors were substituted through their mother and natural guardian. 6. The learned trial court has initially granted interim protection vide order dated 9-4-2008 against the defendant No.1 till the hearing of 33-C/2 and it was directed that the defendant shall not alienate the property mention in the application. After hearing the parties the application has been rejected vide impugned order on the ground that since the application 33-C/2 was moved against defendant No.1 and he is not alive and thus the application has become infructuous now. 7. Aggrieved by the impugned order this appeal has been preferred. 8. Learned Senior Advocate Sri M.C. Pandey, appearing on behalf of respondents has raised preliminary objection that appeal is not maintainable against the impugned order and revision is maintainable against the rejection of application filed U/O 39 Rule 5 C.P.C. 9. 7. Aggrieved by the impugned order this appeal has been preferred. 8. Learned Senior Advocate Sri M.C. Pandey, appearing on behalf of respondents has raised preliminary objection that appeal is not maintainable against the impugned order and revision is maintainable against the rejection of application filed U/O 39 Rule 5 C.P.C. 9. In reply learned Senior Advocate Sri L.P. Naithani appearing on behalf of appellant has submitted that the appeal is maintainable U/O 43 Rule-1(q) C.P.C. since the order has been passed under sub-rule (2) of sub-rule (6) of Order 38 C.P.C. 10. The issue in this case is not important whether against impugned order appeal is maintainable or the revision, but the issue is whether the order impugned has been passed in accordance with law or not and it is well settled that if the court is having jurisdiction of revision and appeal as well, the same can be converted vice-versa. Therefore, the appeal is converted into revision. 11. Office is directed to renumber the appeal as revision. By a perusal of impugned order it shows that the application 33-C/2 has been rejected on the ground that after the death of defendant No.1 the application has become infructuous. The impugned order is totally erroneous and the learned Civil Judge has committed a manifest error of law in not considering this fact that the legal heirs of defendant No.1 have been substituted on record and the application is also maintainable against the legal heirs of defendant No.1. There is no factual dispute that the defendant respondents are legal heirs of deceased Chandra Sekhar Joshi defendant No.1. Therefore without entering into the merits of the case order impugned whereby the application 33-C/2 has been rejected on the ground that the application has become infructuous on the death of defendant No.1, is liable to be set aside. 12. The revision petition is allowed. The impugned order passed by the trial court is set aside. The trial court is directed to decide the application 33-C/2 afresh after hearing the parties expeditiously as far as possible, preferably within three months from the date of production of certified copy of this order. The interim protection which was granted by the trial court on 9-4-2008 shall operate till the fresh decision is taken by the trial court on application 33-C/2 filed U/O 38 Rule 5 C.P.C. 13. The interim protection which was granted by the trial court on 9-4-2008 shall operate till the fresh decision is taken by the trial court on application 33-C/2 filed U/O 38 Rule 5 C.P.C. 13. By the impugned order, the application 108-C moved by plaintiff to direct the legal heirs of defendant No.1 to furnish security, and 110-C moved by legal heirs whereby some proposal was submitted, have also been rejected. Since the application 33-C/2 moved U/O 38 Rule 5 C.P.C. has to be decided afresh, therefore, the rejection of application 108-C and 110-C is also set aside and these applications be also heard afresh at the time of deciding the application 33-C/2.