JIWANI Vs. RAJMATA BASANTIKA DEVI

JUDGEMENT

(1.) Suit for possession of the land in dispute, filed by the respondents-plaintiffs, was decreed on December 31, 1965. Execution application was filed by the respondents on May 8, 1974. The appellant filed objections to the said application. The trial Court, by its order dated August 10, 1984, rejected the objections and allowed the execution. Civil Revision filed by the appellant against the order of the Executing Court was dismissed in limine by the High Court on September 21, 1984. This appeal by way of special leave petition is against the order of the Executing Court as upheld by the High Court.

(2.) Pindu, father of the appellant, took possession of the land as a tenant from the respondents, in the year 1929. He died in 1950 and thereafter his widow Gangi stepped into his shoes and continued to be recorded as tenant in the revenue records. Gangi died in the year 1960 and thereafter the appellant, daughter and sole heir left by Gangi, came into possession of the land and was recorded as tenant. Rana Raghunath Singh and others instituted a suit for possession on December 13, 1963 which was decreed by the trial Court on December 31, 1965. It is not disputed that the execution application was prepared on November 27, 1973. It was signed and verified by one Randhir Singh who was a joint decree holder along with Rana Raghunath Singh and others. Randhir Singh died on April 1, 1974. It is further not disputed that the execution application which was prepared on November 27, 1973 was not filed by Randhir Singh, before the Executing Court, during his lifetime. It was only on May 8, 1974, long after- his death that the said application was filed in the Court of Sub Judge First Class, Theog District Shimla. The execution application was filed in the court under the signatures and verification of Randhir Singh who had died on April 1, 1974. The Executing Court, without notice to the appellant, issued warrant of possession in respect of the disputed land by its order dated May 8, 1974. The appellant challenged the order before the High Court on the ground that the same was a nullity because the warrant of possession was issued behind the back of the appellant and in utter violation of the rules of natural justice. The High Court by its order dated July 24, 1988 quashed the order of the Executing Court dated May 8, 1974 and remanded the case for fresh decision in accordance with law.

(3.) The main objection filed by the appellant before the Executing Court, was that the Execution application filed by the respondents was non est in the eyes of law because it was signed and verified by a person who was dead on the date of filing of the application. It was contended on behalf of the appellant that the application was liable to be dismissed on the ground that the mandatory provisions of Order 21, Rule 11 of the Civil Procedure Code were not complied with. The Executing Court came to the conclusion that the procedural defect could be remedied under Order 21, Rule 17, Civil Procedure Code and as such the court dismissed the objections filed by the appellant. While dismissing the objections on August 10, 1984 the Court adjourned the case to September 3, 1984 for obtaining the signatures of another decree-holder on the execution application. None was present on behalf of the respondents on September 3, 1984 and the case was adjourned to September 25, 1984. It was further adjourned to September 29, 1984 and on that date the execution application was signed by Devinder Singh and Narinder Singh.