BRIJ BHUSHAN SHARMA Vs. ANAND

JUDGEMENT

(1.) Heard Sri A.K.Goyal, learned counsel for the petitioner and Sri Rajesh Gupta for the respondents.

(2.) Pleadings have been exchanged between the parties and with the consent of the learned counsel for the parties, the writ petition is being finally disposed of at this stage.

(3.) Undisputed facts are that the plaintiff-petitioner filed a suit no. 664 of 1985 against the respondent no. 2 (since deceased) and represented by respondent no. 1 and 2/2 to 2/5 and respondent no. 3 (since deceased) and represented by respondents no. 3/1/1 for eviction and damages on the ground of arrears of rent and creating sub-tenancy. Defendant Roop Ram only contested the suit and filed written statement. The suit was decreed by the trial court vide judgement and order dated 19.7.1991 for arrears of rent with the direction to the defendants to hand over the possession of the suit property within a period of 30 days. The petitioner decree holder filed an application dated 21.8.1991 for execution which was registered as execution case no. 74 of 1991. In the meantime, Room Ram went up in appeal against the judgement and order of the trial court. Civil appeal no. 154 of 1991 was dismissed vide judgement and decree dated 10.1.1992. He also filed a Second Appeal no. 218 of 1992 before this Court wherein a conditional interim order dated 27.1.1992 was passed on account of which the execution proceeding was held up. Roop Ram the appellant of the Second Appeal died on 9.7.1998. When no steps were taken for substitution, vide order dated 27.8.2003, the Second Appeal was dismissed as abated and the interim order was vacated. With the dismissal of the second appeal and vacation of the interim order passed therein, the execution proceedings were commenced again. The executing court vide order dated 13.8.2004 directed the petitioner decree holder to take steps for service of notice on the heirs of Roop Ram the deceased judgment debtor. Respondent no. 1 herein son of late Roop Ram and one Ram Ratan respondent no. 3/1/1 alleging himself to be heir of deceased Nanwa put in appearance on 29.11.2004 and sought time for objection. Efforts were made by them to delay the proceeding of the execution case by seeking substitution of four married daughters of late Roop Ram. The petitioner decree holder moved an application giving out names of heirs of the deceased Roop Ram with a prayer to proceed with the execution as the interest of the deceased judgment debtor was represented by one of his heir who had already put in appearance. The executing court vide order dated 12.4.2005 allowed the application and dismissed the objection filed on behalf of the heirs of the judgment debtor. Thereafter, respondent no. 1 filed an objection under Section 47 C.P.C. which was registered as misc. case no. 62 of 2005. With an intention to further delay the execution proceeding, respondent no. 1 filed an application in misc. case no. 62 of 2005 seeking permission to adduce oral evidence of the heirs of deceased judgment debtor Roop Ram. The executing court rejected the application on 20.12.2006. Aggrieved, respondent no. 1 and one married daughter of deceased judgment debtor Smt. Shiv Kumari (respondent no. 2/4) filed a revision which was dismissed vide order dated 14.2.2007. After dismissal of the objection under Section 47 C.P.C. the petitioner decree holder moved an application dated 3.7.2009 for appropriate orders for execution of the decree with the prayer that there was no necessity for effecting service on the married daughters of the deceased judgment daughter as his interest was duly represented by his son respondent no. 1 and one of the married daughter namely, Smt. Shiv Kumari. The application was resisted by respondent no. 1 on the ground that execution is not liable to be proceeded unless service is effected on all the heirs of deceased judgment debtor. The executing court vide order dated 17.11.2009 rejected the objection filed by the respondent no. 1 as well as his prayer to file further objection under Section 47 C.P.C. and issued 'Parwana Dakhal' for which steps were to be taken by the petitioner decree holder within seven days. The respondent no. 1 and 2/4 challenged the order dated 17.11.2009 by filing civil revision no. 157 of 2009. The District Judge vide order dated 1.12.2009 admitted the revision despite objection filed by the petitioner regarding maintainability of the revision and stayed the 'Parwana Dakhal'. Aggrieved by the same, the petitioner has approached this Court.