JADAVJI DEVSHANKER SINCE DECD Vs. JIVIBEN LAVJI RUGHNATH

JUDGEMENT

(1.) This second appeal arises out of execution proceedings The appellants are heirs of the original judgment debtor against whom a decree of eviction from rented premises had come to be passed for the first time by the High Court in Second Appeal No. 589 of 1965 decided by this High Court on 25-3-71. Lavji Ragnath the husband of the respon- dent had filed the said suit for possession of the rented premises under the provisions of the Saurashtra Rent Act and the ground of eviction was non-payment of rent. Both the trial court and the appellate court namely the District Court had dismissed the plaintiffs suit against which the above-mentioned Second .Appeal had come to be filed in the High Court in the year 1965 as the number indicate . During the pendency of the said Second Appeal said Lavji Ragnath died on 3-4-68 but the High Court and the respondents in the High Court did not know of the death of the sole appellant before the High Court. The High Court came to decide the said appeal and reversed the judgments and decrees of the lower courts and decreed the original plaintiffs suit for possession. When the execution proceedings came to be filed by the widow of the said plaintiff- landlord Lavji Ragnath as the heir and legal representative of the judgment- creditor a question arose whether there was any competent decree which could be executed. The darkhast that was filed by Jiviben the widow of the original plaintiff Lavji Ragnath was registered as darkhast No. 62 of 1973 by the learned Civil Judge (S. D.) Rajkot. The trial court held that the decree could not be slid to be a nullity and as the executing court it had no powers to go behind the decree. The court therefore passed an order to issue warrant under Order 21 Rule 35 of the Civil Procedure Code for effecting delivery of possession of the property to Bai Jivi. The original judgment debtor-tenant who was alive at that time filed Civil Appeal No/125 of 1974 before the District Judge Rajkot who came to concur with the view of the learned executing court. The result was that the appeal was dismissed. It is against this order in the execution appli- cation confirmed by the District Judge that the present second appeal has been filed under sec. 100 read with sec. 47 of the Civil Procedure Code.

(2.) The only question that arises for consideration is whether in view of the admitted facts the decree was executable or not. During the pendency of this second appeal the original judgment-debtor had died and his seven heirs have been brought on record and they have been prosecuting this appeal.

(3.) On behalf of the appellants it was contended that the sole appellant before the High Court in Second Appeal No. 589 of 1965 having died the appeal had automatically abated result being that the District Courts decree held the field since 1968-69. As the appeal had abated by statutory force nothing was required to be done be any of the parties. There was in fact no appeal on the record of the High Court and the decree was passed by the High Court in a matter which was not there and so it would obviously be a nullity and there cannot be any execution founded on such a non est decree.