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2018 DIGILAW 890 (ALL)

GOPI CHAND v. ADDITIONAL DISTRICT JUDGE

2018-04-12

VIVEK KUMAR BIRLA

body2018
JUDGMENT : Vivek Kumar Birla, J. Heard Sri Ramendra Asthana, learned counsel for the petitioners and Sri Swapnil Kumar, learned counsel for the respondent-caveator. 2. Supplementary affidavit filed today is taken on record. 3. Present petition has been filed with the following prayer: "(a) Annual judgments and orders dated 9.2.2018 (contained in Annexure No. 8 to the petition) passed by the learned Additional District Judge, Court No. 11, Agra, the respondent no. 1 dismissing Civil Revision No. 25 of 2017, Gopi Chand (Now dead through L.Rs.) v. Jagdish Prasad) and 14.2.2017 (contained in Annexure No. 5 to the petition passed by the learned First Additional Civil Judge (Senior Division) Agra, the respondent no. 2 rejecting Application (65 Ga) in Execution Case No. 5/2002, Gopi Chand v. Jagdish Prasad) and may graciously be pleased to substitute the same by its own judgments and orders." 4. By the order dated 14.2.2017 the application filed by the petitioner-Munna Lal under Order 1 Rule 10 CPC read with Order 22 Rule 3 CPC was rejected. Against the said order revision filed by him was also rejected. 5. Submission of learned counsel for the petitioner is that the petitioner was never put to notice of the execution case after death of his father and the assignment deed dated 6.2.2002, executed by his father in favour of contesting respondent-Baital Singh, was a document forged to pursue the execution, which was existing in favour of late Gopi Chand. Submission is that he is son of the deceased decree holder and as such, he is a necessary party to the execution proceedings and therefore, he is liable to be impleaded in the execution case. In support of his argument learned counsel for the petitioner has placed reliance before this Court the provisions of Order 22 Rule 4 CPC, Order 21 Rule 10 CPC and Rules 4, 5 and 8 of Order 22 CPC. It was further submitted that both the courts below have failed to take notice that Sri Gopi Chand died during pendency of the appeal and in the execution proceedings his legal heirs were substituted in appeal, which was later on dismissed and legal heirs of Gopi Chand had no knowledge about the execution proceedings. It was further submitted that both the courts below have failed to take notice that Sri Gopi Chand died during pendency of the appeal and in the execution proceedings his legal heirs were substituted in appeal, which was later on dismissed and legal heirs of Gopi Chand had no knowledge about the execution proceedings. It was further submitted that Order 22 Rule 10 CPC would come into play inasmuch as the assignment deed, forming subject matter of this petition, was produced by Baital Singh in appeal and the appeal was decided without holding the same to be valid deed. Crux of the submission is that under such circumstances the interest of the legal heirs including Munna Lal is vitally affected and they are liable to be impleaded in the execution proceedings. 6. Per contra, Sri Swapnil Kumar, learned counsel appearing for the contesting respondents has submitted that the assignment deed was executed on 6.2.2002 by Gopi Chand and the execution proceedings are pending since 2002 but the legal heirs of Gopi Chand including the petitioner no. 1/1 never came forward to contest the case although notices were issued to them and they have also put in their appearance in the year 2013 itself. It is not in dispute that Gopi Chand had died on 7.11.2004 as mentioned in the order dated 14.2.2017 (or on 17.11.2004 as mentioned in paragraph 18 of the petition) and they never came forward to get themselves impleaded all through these years and the present application has been filed in January, 2017 merely for the purpose of delaying the execution proceedings, whereas after the draft of the sale deed was approved by the Court and he has already deposited stamp duty of Rs. 14,54,000/- on 15.7.2016. Submission is that the sole object is to somehow challenge the assignment deed, whereas challenge to the same is highly time barred. It was next submitted that as a matter of fact it is only the respondent no. 5 Baital Singh, who was pursuing the execution proceedings after assignment made in his favour in the year 2002. It is further submitted that had the execution case not been pursued by anyone, the limitation to pursue the same would have expired. He has further submitted that the application was filed by Baital Singh under Order 22 Rule 16 CPC in the year 2002 and notices were issued to the petitioner. 7. It is further submitted that had the execution case not been pursued by anyone, the limitation to pursue the same would have expired. He has further submitted that the application was filed by Baital Singh under Order 22 Rule 16 CPC in the year 2002 and notices were issued to the petitioner. 7. I have considered the submissions and have perused the record. 8. On perusal of record I find that the facts as already noticed are not in dispute and the perusal of the order dated 14.2.2017 clearly reflects that after death of Gopi Chand in the year 2004 Munna Lal, the petitioner herein and also to his all brothers and sisters, notices were issued and they never came forward to get themselves substituted/impleaded in the execution proceedings. On the contrary, Munna Lal and his sisters have received the notices and they have signed the order-sheet dated 4.10.2013 and have also filed their Vakalatnama on 23.8.2013 through their counsel Sri Harish Chand and have also done pairvi under Order 21 Rule 34 CPC. Therefore, it is clear that they were aware of this execution proceedings and the present application has been filed after expiry of 13 years. It was further noticed that according to paper no. 57-C Vijay Singh legal heirs of Gopi Chand has refused to accept the notice and as per paper no. 59C/1-2 Munna Lal himself had received the notices on 23.4.2014. The order further reflects that sisters of Munna Lal namely Kamla Devi and Rani Devi had appeared in the execution proceedings and have filed their Vakalatnama on 23.8.2013 being paper no. 26C. Therefore, it is very much clear that they were aware of the execution proceedings. It was further noticed that Baital Singh is pursuing the present execution proceedings and this fact has been noticed in the earlier order dated 24.11.2016 and 6.12.2016. 9. Under such circumstances, the application filed by the petitioner was rejected. The revisional court had also noticed the aforesaid facts and under such circumstances it was found that the impleadment application was mala fide and was rightly rejected by the execution court. 10. 9. Under such circumstances, the application filed by the petitioner was rejected. The revisional court had also noticed the aforesaid facts and under such circumstances it was found that the impleadment application was mala fide and was rightly rejected by the execution court. 10. In this factual scenario, I find substance in the argument of learned counsel for the respondent that the present application has been filed for the purpose so that somehow the assignment deed may be put to challenge by the petitioners, challenge to which has now become highly time barred. 11. Under such facts and circumstances of the case, I do not find any jurisdictional error or perversity in the order impugned herein so as to warrant interference under Article 227 of the Constitution of India. 12. With the aforesaid observations, present writ petition stands dismissed.