NASEEM AHMED Vs. 1ST ADDITIONAL DISTRICT JUDGE HARIDWAR

JUDGEMENT

(1.) This writ petition arises out of the orders passed by the court below during the execution proceedings. It is an extremely old matter pertaining to the year 2004. The decree holder i.e. respondent no. 3 before this Court who had a decree in his favour has not been able to execute the same as there is an interim order dtd. 28/5/2004 passed by a Coordinate Bench of this Court.

(2.) Brief facts of the case are that a suit for possession was filed by the plaintiff (respondent no. 3 before this Court), in which there were two main defendants i.e. Abdul Majid and Mohammad Ishaq i.e. defendant nos. 1 and 2 and defendant nos. 3 and 4 i.e. Rajendra Nath and Virendra Nath were the proforma defendants. The case of the plaintiff was that the property was purchased by him and defendant nos. 3 and 4 from its erstwhile owner Sri Hari Chand vide sale deed dtd. 8/11/1971. Since the defendant nos. 3 and 4 were in the Indian Army and were deployed towards the border in the year 1971, the property was occupied by defendant nos. 1 and 2 taking advantage of absence of defendant nos. 3 and 4. Consequently, the defendant (respondent no. 3 before this Court) filed a civil suit before the Court of Munsif, Roorkee praying for a decree of possession.

(3.) During the pendency of the suit, out of the two main contesting defendants, defendant no. 2 passed away on 27/2/1982. The plaintiff thereafter moved an application for substitution under Order XXII Rule 4 of the Code of Civil Procedure (from hereinafter referred to as "CPC"). Substitution application moved by the plaintiff was allowed and the widow of deceased Mohd. Ishaq, namely, Smt. Mudi and the minor children through her mother were substituted as defendant nos. 2/1 to 2/7. Again during the pendency of the suit, defendant no. 1 also passed away on 22/12/1985. According to the petitioners, the legal heirs of defendant no. 1 were not substituted by the plaintiff.