RAM CHANDRA Vs. NARENDRA KUMAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner and Shri Raj Kumar Srivastava, learned counsel for the respondent who has filed his vakalatnama.

(2.) Original suit no.135 of 1971 was filed by Dulhin Krishnawati Devi since deceased and survived by respondents 1 and 2 against Devi Lal since deceased and survived by petitioner and proforma respondents 3 to 7 for ejectment, recovery of arrears of rent and demolition of unauthorised construction. The suit was decreed on 10.2.1976. Civil Appeal was dismissed by the District Judge/Additional District Judge and Second Appeal No.832 of 1978 was dismissed by this court on 11.11.2005. Learned counsel for the respondent states that Special Leave Petition was filed against the said judgment before the Supreme Court which was also dismissed. Plaintiff filed execution case no.77 of 1980 for execution of the decree. During pendency of the execution case defendant judgment debtor Devi Lal died on 15.9.1995. Plaintiff decree holder filed substitution application which was allowed on 3.2.1996 and petitioner and respondents 3 to 7 were substituted at the place of devi Lal. Afterwards Dulhin Krishnawati Devi also died and respondents 1 and 2 on the basis of the Will dated 8.8.2005 applied for substitution. Civil Judge (Junior Division), Court No.10, Deoria allowed the substitution application on 6.2.2009. Against the said order petitioner filed revision being Civil Revision No. Nil of 2009 which was dismissed in limine by District Judge, Deoria on 21.5.2009. Orders dated 6.2.2009 and 21.5.2009 have been challenged through this writ petition after four years.

(3.) The only argument of learned counsel for the petitioner is that by virtue of Order 22 Rule 12 C.P.C. provision of substitution do not apply to execution proceedings hence no substitution was permissible and decree holder could only apply for fresh execution. In this regard reliance has been placed upon Full Bench authority of this court Baij Nath vs. Ram Bharosey, 1927 AIR(All) 165. Para-9 of the aforesaid Full Bench authority is quoted below:-