K.V.NARAYANI Vs. K.V.KAMALAM

JUDGEMENT

(1.) JUDGMENT debtors in E.P.No.188 of 2011 in O.S.No.552 of 2003 of Munsiff's Court, Hosdurg challenge Ext.P8, order passed by the executing court on 19.01.2013 directing delivery of property as prayed for by the second respondent herein.

(2.) DECEASED first respondent filed O.S.No.552 of 2003 and obtained a decree for recovery of possession of the property. Petitioners filed A.S.No.24 of 2007 in the Sub Court, Hosdurg. During pendancy of that appeal, first respondent died on 29.04.2012. Death was reported on 29.06.2012 and the appeal was posted for steps on 07.11.2012. On that day, the appeal was dismissed for failure to take steps. Exts.P3 to P7, applications are pending in the Sub Court, Hosdurg to readmit the appeal, condone the delay etc.

(3.) LEARNED counsel for petitioners submits that though petitioners had disputed the Will relied on by the second respondent, it is without conducting enquiry as required under under Rule 5 of Order XXII of the Code of Civil Procedure (for short, "the Code") that the executing court has allowed E.A.No.711 of 2012 on 03.01.2012. It is also argued that the third respondent who is another legal heir of deceased first respondent is not made a party in E.P.No.188 of 2011. Exts.P3 to P7, applications are coming up for decision before learned Sub Judge, Hosdurg on 13.03.2007. In the circumstances order for delivery cannot be sustained.