MAKKHAN LAL JAISWAL Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) B. K. Rathi, J. Smt. Vidyawati Gupta, who was the owner and landlady of House No. 17/25 Hemilton Road, Allahabad filed Suit No. 93/97 for eviction and recovery of arrears of rent against the Executive Engineer, Investigation and Planning Division of State of Uttar Pradesh. There was an office of Executive Engineer in the premises. Sri M. A. Majid was posted as Executive Engineer and was living in a portion of the premises and he was also made a party in the suit. The suit was decreed on 13-4- 1982; that decree has been put to execution by Smt. Vidyawati Gupta, who has since died on 15-12-1982. However, the execution is being prosecuted by respondent No. 1, Sri Rajesh Pandey. He claims that Smt. Vidyawati Gupta left Smt. Meera Gupta and Sri Rakesh Gupta as her heirs; that Smt. Meera Gupta and Sri Rakesh Gupta executed the power of attorney in his favour to execute the decree. Therefore, he is entitled to execute the decree and has filed general power of attorney executed in his favour.

(2.) THE present revisionists filed objections in the execution which were treated as objections under Section 47 C. P. C. THEy allege that they have purchased the property from Smt. Meera Gupta and Sri Rakesh Gupta, heirs of Smt. Vidyawati Gupta; that, therefore, the decree cannot be executed by Smt. Vidyawati Gupta or by her general power of attorney holder. It was further pleaded that Smt. Vidyawati Gupta died on 15-12-82 whose heirs have not been impleaded and therefore, the execution cannot proceed; that there is no general power of attorney in favour of the opposite party No. 2 to execute the decree.

(3.) THE first point raised before me in this revision is that execution of the decree was filed by Smt. Vidyawati Gupta and is execution case No. 14/82. Admittedly, Smt. Vidyawati Gupta had died on 15-12- 1982. Her heirs have still not been substituted in the execution. It is true that in the light of the provisions of Rule 12 of Order XXII, C. P. C. , the provisions of Order XXII, C. P. C. does not apply to the execution proceedings and the execution cannot abate on the death of the decree-holder, but the question is as to whether from this provision it can be concluded that execution can proceed after the death of the decree holder without substitution of his heirs. THE reply will certainly be in negative. THEre must be somebody to prosecute the proceedings and the execution proceedings cannot be proceeded till the heirs of the decree-holder are substituted. THE decree- holder, who moved application for execution died as back as in the year 1982. Her heirs have still not been substituted. THE natural question is as who will prosecute the execution proceedings.