NAND RANI Vs. CIVIL JUDGE JUNIOR DIVISION PILIBHAT

JUDGEMENT

(1.) A decree for eviction in favour of Seo Shankar Lal against Lal Behari was passed in suit No. 36 of 1964. The decree was put into execution by Sheo Shanker Lal. Sheo Shanker Lal died during the pendency of the execution proceedings. An application was filed by the 2nd respondent Rama Devi for substitution in his place. The application was allowed by the order dated 26-4-91 of the executing Court. Lal Behari filed a revision No. 26 of 1991 against this order. The revision was dismissed on 6-4-1995. It appears that an application dated 6-11 -96 was GV/GV/A537/2004/GSD-VNP/USA/24959/2004 then filed by the petitioner for substituting her name in place of the deceased decree holder Sheo Shankar Lal and for striking off the name of respondent No. 2 Smt. Rama Devi. Objections were filed to this application by the 2nd respondent. The petitioner also filed another application for cross-examining the 2nd respondent, Smt. Rama Devi. Both the applications of the petitioner for substitution as well a for cross-examination were rejected by the executing Court by its order dated 3-12-97. Against this order, a revision was preferred by the petitioner, which was dismissed on 16-7-99. Both the order are under challenge in this writ petition.

(2.) It is submitted by Sri K. K. Arora counsel for the petitioner that the petitioner is the sister of the deceased Sheo Shanker Lal and a preferential heir to the 2nd respondent and therefore ought to have been substituted in place of the deceased decree holder. He submits that the application for substitution filed by the petitioner was an application falling under Section 47(3) of the CPC and separate suit being barred by Section 47(1), Civil Procedure Code the matter ought to have been decided after full opportunity to the parties to adduce oral evidence also and not on affidavits alone and the petitioner's application for cross-examination was therefore erroneously rejected.

(3.) If the determination of the heirship would affect the rights of the parties to succession and a separate suit is barred there may be some merit in the petitioner's contention that opportunity to lead oral evidence and of cross-examination ought to have been provided. In order to determine whether the application filed by the petitioner falls within the ambit of Section 47(3), Civil Procedure Code it is necessary to determine the scope of sub-sections (1) and (3) of Section 47."