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2015 DIGILAW 589 (JK)

Misra Bibi v. Mohd. Hussain Malik

2015-11-16

BANSI LAL BHAT, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : Bansi Lal Bhat, J. Through the medium of MP No. 04/2014, applicants Safia Bano and Sona Begum seek substitution as legal representatives of appellant-Misra Bibi Alias Begum who is stated to have expired in the year 2006. Substitution is sought on the ground that the applicants are the daughters and only legal representatives of deceased-Misra Bibi who were not aware about the pendency of Letters Patent Appeal before this Court. It is averred in the application that the applicants after their marriage were living separately and they were not aware about the pendency of LPA; that they only came to know about the fact in March, 2014 when they were contacted by learned counsel for the deceased-appellant. It is contended that the applicants' right to sue survives and being legal representatives of deceased-appellant they are entitled to be brought on record in place of deceased-appellant. 2. Respondents have opposed the motion on the ground that as per the documents placed on record by the applicants, the appellant-Misra Bibi died on 12.05.2006, but substitution was sought on 28.03.2014 i.e. after a delay of about 08 years from the date of death of deceased-appellant. It is contended that the application is barred by limitation and the appeal stands abated. Respondents have also pleaded that applicant No. 2-Mst. Safia Bano was residing with the deceased-appellant even after the formers marriage in House No. 263 Mohalla Dalpatian, Jammu which was in possession of deceased-appellant and she continued to live in the same house. Thus, there is no ground for allowing the application. 3. There is no representation for the appellant. Record was perused and audience was granted to learned counsel for the respondents. 4. It is not in dispute that the applicants have sought substitution in place of deceased-appellant on the strength of their status as daughters of the deceased-appellant and such substitution was sought about 08 years after the death of appellant-Misra Bibi. No sufficient cause has been assigned for the huge delay in preferring the application for substitution which, on the face of it, is barred by limitation. No sufficient cause has been assigned for the huge delay in preferring the application for substitution which, on the face of it, is barred by limitation. The fact that the applicants are staying away from the proceedings and have not controverted the plea raised by respondents further reinforces belief in the plea raised on behalf of the respondents that applicant No. 2 was residing with the deceased-appellant even after her marriage and continued to be in occupation of the house of deceased-appellant even thereafter. Since the substitution application has not been preferred within the period of limitation and the huge delay of more than 07 years has not been satisfactorily explained, motion does not deserve to be allowed. The appeal preferred by the deceased-appellant abates on account of failure to seek substitution of legal representatives in place of deceased-appellant within the prescribed time. 5. Even if, it is assumed that a sufficient ground for substitution of applicants as legal representatives of deceased-appellant is carved out, appeal lacks merit. The appellant alienated the subject matter of decree as well as her rights flowing out of the decree passed in the suit filed by her in respect of Plot No. 3 Sector No. 2 measuring 25' X 50' situated at Gujjar Nagar, Jammu with construction raised thereon. The alienation was effected through the mode of a sale deed executed by deceased-appellant in favour of respondent No. 1 while her execution petition was pending determination. Respondent No. 1 appears to have sought substitution as, decree holder in place of the appellant. The prayer was considered and the Executing Court allowed the substitution. The order allowing substitution of respondent No. 1 as decree holder in place of the deceased-appellant has not been assailed or questioned. The issue whether assignment of interest under the decree in question was valid or not would be a question touching execution, discharge or satisfaction of the decree which has to be decided by the Executing Court within the purview of Section 47 CPC. Filling of independent suit by the original decree holder or the assignee would be barred. Thus, separate suit to seek adjudging of the sale deed as void is hit by the provision contained in Section 47 CPC and the finding by the Executing Court that the assignment was valid also operates as res-judicata. 6. We find no infirmity in the impugned judgment. Thus, separate suit to seek adjudging of the sale deed as void is hit by the provision contained in Section 47 CPC and the finding by the Executing Court that the assignment was valid also operates as res-judicata. 6. We find no infirmity in the impugned judgment. The appeal is devoid of merit and the same is dismissed along with connected MFs.