RADHAKRISHAN BIHARILAL Vs. CHATURSINGH GOVINDSINGH THAKAR

JUDGEMENT

(1.) This revision application is directed against the judgment and order passed by the Appellate Bench reversing the judgment and order of the executing Court. The executing Court had held that the decree for possession in favour of the dead plaintiff was a nullity and was not executable. However the lower appellate Court came to a contrary conclusion. Hence the judgment debtor has come in revision.

(2.) Civil Suit No. 234 of 1977 was filed by Sheth Chimanlal Popatlal through is general power of attorney holder Chatursingh Govindsingh. The suit for possession on the ground of arrears of rent came to be decreed on 21-4-1981. Thereafter the said power of attorney holder filed the execution application on 30-7-1981 as the power of attorney holder of Sheth Chimanlal Popatlal. In the execution application the judgment debtor raised an objection that the plaintiff (principal) Sheth Chimanlal Popatlal had expired on 14-8-1978 about 2 years and B month is prior to the passing of the decree on 21-4-1981 and the authority of the general power of attorney holder had ceased with death of the plaintiff (principal) and as the heirs and legal representatives of the principal were not brought on record and since he was the sole plaintiff the suit had abated and no decree could have been passed in favour of the deceased plaintiff and therefore the decree was a nullity and not executable. The Small Causes Court in execution upheld the objection of the judgment debtor and dismissed the execution application.

(3.) The said power of attorney holder Shri Chatursingh Govindsingh preferred appeal to the Appellate Bench of the Small Causes Court. Surprisingly the appeal was filed as power of attorney holders of late Shri Chimanlal Popatlal There was no application to bring the legal heirs and representatives on record. Straightway the appeal was preferred in this manner. That appeal has been allowed by the Appellate Bench holding that not bringing the heirs and legal representatives of the deceased plaintiff was a mere irregularity and the decree was not a nullity. If there was any error or irregularity in the judgment and decree of the trial Court the same was required to be corrected only by way of appeal or revision and the objection could not be taken in execution and the executing Court could not go behind the decree and therefore the appeal was allowed. It is against this judgment of the Appellate Bench that the judgment debtor has come in revision.