SAHDEO PRASAD VERMA Vs. RAJA RAM

JUDGEMENT

(1.) These connected revisions are directed against a common order passed by the Second Additional Civil Judge, Kanpur dated Nov. 13, 1980 under Section 47. Civil P. C.

(2.) The revisions arise from the original suit No. 173 of 1954 instituted in the Court of the Subordinate Judge, Kanpur by Sahdeo prasad Verma and others against Raja Ram and others. In brief the allegations of the plaintiffs were that one Hakim Sarju Prasad had created a trust by Will dated Oct. 16, 1907 in respect of house No. 75/109 Ranjeet Purwa Kanpur. The plaintiffs were the trustees. Mahadeo Prasad had been managing for some time the trust property on behalf of the trustees. Taking advantage of his position Mahadeo Prasad declared himself as the owner of the house a will was also executed by him on May 13, 1943 in favour of his daughter and the wife. Subsequent to the death of Mahadeo Prasad these persons asserted themselves to be the owners of the house. The tenants in the house were in collusion with them and they denied the rights of the plaintiffs. The daughter of Mahadeo Prasad had also died and the defendant No. 1 is her husband. The defendant No. 2 was the widow of Mahadeo Prasad aforesaid. The defendants Nos. 3 to 19 had been living, according to the plaintiffs, as tenants in different portions of the house. They also denied the rights of the plaintiffs and hence the plaintiffs sought them as well to be ejected besides the defendants Nos. 1 and 2. The relief sought was for possession and the recovery of mesne profits. After contest the suit was dismissed by the II Additional Civil Judge, Kanpur on Oct. 31, 1957. The plaintiffs preferred First Appeal No. 55 of 1958 against the judgment and decree of the trial Court. The appeal was allowed on Oct. 20, 1970. The judgment and decree of the trial Court were set aside. The suit was decreed for possession and for recovery of Rs. 3982.5 annas and mesne profits besides pendente lite and future mesne profits. The decree was put to execution on July 31, 1971 by one of the decree-holders, namely, Sahdeo Prasad Verma. Objections were raised by the judgment-debtors under Section 47, Civil P. C. which have been allowed by the II Additional Civil Judge under the impugned order dated Nov. 13, 1980. Aggrieved the decree-holders have preferred these revisions.

(3.) Learned II Additional Civil Judge has allowed the objections raised for the judgment-debtors on three grounds, namely:-- (i) the Court of II Additional Civil Judge, Kanpur, it has been held, did not have jurisdiction to entertain the application for execution of the decree. The finding is that the Court of the then II Additional Civil Judge which had passed the decree on Oct. 31. 1957 had been abolished: new Court had been created in place thereof and hence the application for execution could not lie in that newly created Court (ii) the respondents Nos. 13, 17 and 18 in First Appeal No. 55 of 1958 (corresponding to defendants Nos. 12, 16 and 17 respectively) died during the pendency of the appeal before the High Court but there was no application made tor the substitution of their legal representatives and on that account the appeal abated and the decree dated Oct. 20, 1970 is to be regarded as a nullity; (iii) the execution application having been filed by only one of the trustees did not He since the co-trustees were not made parties thereto.