SWAYAMPRABHA Vs. UNION BANK OF INDIA

JUDGEMENT

(1.) The respondent bank obtained a decree against a partnership firm which was defendant No. 1 in the suit. The partners were impleaded as defendants 2 to 6. Defendant No. 2 in the suit was shown as representing the first defendant firm. Summons was served on the defendants in the suit. It is the case of the revision petitioners that the summons on the second defendant was not served directly but was effected by substituted service by the Trial Court. Whatever that be the suit that was filed on 14-10-1977 was decreed on 25-6-1978.

(2.) The respondent bank initiated execution proceedings and it appears that some amounts were realised. On 10-7-1990 the wife and children of the second defendant filed a petition for impleading them in the proceedings in execution on the allegation that the second defendant had not been heard of from 3-2-1977 and has hence to be presumed dead since 7 years have elapsed therefrom. The wife and children who are the petitioners in this Civil Revision Petition wanted to get themselves impleaded as the legal representatives of defendant No. 2. The executing court rejected that prayer. The wife and children of the second defendant filed C.R.P. 2023 of 1990 before this court. This court set aside the order of the court below and directed the executing court to implead the wife and children as additional respondents in the Execution Petition. It is the additional respondents as noted already who are the petitioners in this Civil Revision Petition.

(3.) It appears that the revision petitioners had produced certain documents in support of their application for impleading. It appears that they had also filed a list of witnesses. The petitioners thereafter filed E.A. 641/1991 praying that they may be allowed to reserve their evidence. It appears that their case was that since they had asserted that the second defendant was not heard of for seven years from 3-2-1977 the burden was on the decree holder to establish that the second defendant was alive on the date of suit and that therefore they may be permitted to reserve their evidence until the decree holder has adduced evidence. This petition was rejected by the executing court by stating that the petitioners are entitled to adduce evidence in accordance with the prescribed procedure and no question of reservation of their evidence until the decree holder's evidence is completed arises in the case. The petitioners had come up with this revision petition.