ASHOK TRANSPORT AGENCY Vs. AWADHESH KUMAR

JUDGEMENT

(1.) Special leave granted.

(2.) We have heard the learned counsel for the parties.

(3.) This appeal arises out of a suit for eviction filed by the respondents against three persons namely (1) Ashok Transport Agency (2) A.C. Basu, Proprietor of Ashok Transport Agency and (3) Birnath Singh, Manager of Ashok Transport Agency. The said suit was filed on September 28, 1992. Prior to the filing of the suit, A. C. Basu, Proprietor of Ashok Transport Agency had died on August 6, 1992. In the said suit nobody appeared on behalf of defendants and an ex parte decree was passed on September 28, 1993. The respondents thereafter moved for execution of the said decree. Before the executing Court it was submitted on behalf of the appellant that the decree was a nullity and it could not be executed for the reason that the proprietor of Ashok Transport Agency had already died on the date of the institution of the suit and that the decree was passed against a dead person. The Munsif Sadar, Sitamarhi, by order dated July 13, 1994 upheld the said objection raised by the appellants and dismissed the execution petition on the view that the decree having been passed against a dead person was a nullity and it could not be executed. The Revision filed by the respondents against the said order of the executing Court has been allowed by the Patna High Court by the impugned judgment dated July 23, 1996. The High Court has proceeded on the basis that in view of Order XXX, Rule 10, Code of Civil Procedure, even though the proprietor of the firm Ashok Transport Agency had died before the institution of the suit, the decree passed against him cannot be held to be nullity and, therefore, it could be executed. Feeling aggrieved by the said judgment, the appellant, which is now a partnership firm has filed this appeal.