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2018 DIGILAW 350 (UTT)

GHANSHYAM v. MURARI LAL

2018-07-03

MANOJ K.TIWARI

body2018
JUDGMENT Hon'ble Manoj K. Tiwari, J. (Oral) Both these revisions under Section 115 of Code of Civil Procedure (hereinafter referred to as “CPC") have been filed against the order dated 30.07.2016 passed by learned Civil Judge (Sr. Div.), Khatima in Execution Case No. 2/2013. 2. Civil Revision No.135 of 2016 is directed against that part of the order, whereby application numbered as Paper No.60, made by the revisionists seeking their substitution as legal representative of the decree holder (Murari Lal) was rejected. 3. Civil Revision No.136 of 2016 has been filed against that part of the order, whereby substitution application moved by one Sri Piyush Mittal, on the strength of a will alleged to have been executed in his favour by Murari Lal (father of the revisionists) was allowed. 4. Since, common questions of law and fact are involved in these matters, hence, they are being heard and decided together. 5. Since, part of property of Sri Murari Lal was occupied by his two sons (revisionists herein) and relations between Sri Murari Lal and the revisionists had become very strained, therefore, Sri Murari Lal had to file a civil suit seeking possession of the property, which was occupied by his sons (revisionists herein). The said suit came to be registered as Civil Suit No.85 of 2011, which was decreed by learned Trial Court i.e. Civil Judge (Sr. Div.), Rudrapur vide judgment and order dated 21.05.2013. 6. Sri Murari Lal (plaintiff/decree holder) put the decree to execution by filing execution case No.2 of 2013, which is pending in the Court of Civil Judge (Sr. Div.), Khatima, Udham Singh Nagar. 7. During pendency of execution proceedings, the decree holder (Sri Murari Lal) died on 15.06.2015. Upon death of Sri Murari Lal, the revisionists who are the judgment debtors, filed an application for their substitution as legal heirs of late Sri Murari Lal contending that they being the son of late Sri Murari Lal are his class I heirs. One Sri Piyush Mittal, son of Sri Vishwajeet also moved an application under Order 22, Rule 3 of CPC seeking permission to continue with execution proceedings on the strength of the will executed by Sri Murari Lal in his favour. 8. One Sri Piyush Mittal, son of Sri Vishwajeet also moved an application under Order 22, Rule 3 of CPC seeking permission to continue with execution proceedings on the strength of the will executed by Sri Murari Lal in his favour. 8. Both the parties filed objections to the application of the other side and ultimately learned Trial Court vide order dated 30.07.2016 (i) allowed the application of Sri Piyush Mital and (ii) rejected the application filed by the revisionists. The reason recorded by learned Executing Court for allowing the application of Sri Piyush Mittal is that Sri Piyush Mittal has succeeded to the property by virtue of the will executed in his favour, therefore, he can continue with the execution proceedings as transferee of the suit property. Learned Trial Court further observed that Sri Ghanshyam and Sri Mahendra are party to the execution proceedings as judgment debtor, therefore, they cannot be transposed as decree holder in the execution proceedings. These orders have been challenged by Sri Ghanshyam and Sri Mahendra jointly by filing two separate revisions. 9. Heard learned counsel for the parties and perused the records. 10. It is not disputed that suit for possession and other reliefs was filed against the revisionists, which was decreed and the said decree became final in the absence of any challenge. The decree holder (Sri Murari Lal) put the decree to execution during his lifetime and while the execution proceedings were pending, he passed away. 11. The revisionists, who are the judgment debtors in the said suit, moved an application for their substitution as decree holder in the execution proceedings, so that they may pursue the execution proceedings on behalf of the decree holder. Thus, what was being sought was alteration of the status/character of the revisionists from judgment debtor to that of a decree holder, which in my humble opinion is not permissible, as it would frustrate the decree. 12. I have gone through the orders impugned in these revisions and I find no infirmity, which may warrant interference under Section 115 of CPC. I am of the considered opinion that a judgment debtor cannot be transposed or substituted as a decree holder, so as to nullify the effect of the decree. 13. In such view of the matter, there is no scope for interference in the matter. The revisions are therefore liable to be dismissed and are hereby dismissed. I am of the considered opinion that a judgment debtor cannot be transposed or substituted as a decree holder, so as to nullify the effect of the decree. 13. In such view of the matter, there is no scope for interference in the matter. The revisions are therefore liable to be dismissed and are hereby dismissed. No order as to costs. 14. However, this shall not preclude the revisionists from raising all pleas and contentions available to them in law, before the learned Court below.