LALITA DEVI Vs. KAMLA DEVI

JUDGEMENT

(1.) This revision by the judgment-debtor is directed against the judgment and order dated 22-7-1993 passed by the Ist Additional Civil Judge, Gorakhpur in Misc. Case No.34 of 1992 arising out of Execution Case No.9 of 1990 of the original suit No.207 of 1970.

(2.) Brief facts of the case are that the land in dispute belonged to one Baij Nath Prasad who died leaving four sons. One of them namely Vishwanath Prasad as Karta of the joint family and as guardian of minor son of his deceased brother Sheo Nath Prasad executed a lease deed dated 10/05/1950 in favour of one Moti Lal Tibrewal. The lease was initially for a period of 25 years with an option for renewal for a further period of ten years. Whereafter the land was to revert back to the lessors in a vacant state. Arun Prakash, Udai Prakash, Jyoti Prakash who are the sons of another son namely Gopal Das and Smt. Kamla Devi widow of the deceased son Sheo Nath Prasad, filed a suit No.207 of 1970 in the court of the civil Judge, Gorakhpur against Vishwanath Prasad and his brothers arrayed as defendants No. 1 to 4 and the lessees of the property who were arrayed as defendants No.5 to 11. The suit was for declaration that the lease deed dated 10-5-1950 was not binding on the plaintiffs and that they were entitled to immediate possession over the land. The said suit was dismissed by the trial court. Aggrieved, the plaintiffs filed First Appeal No.274 of 1975 in this court which was partially allowed and this Court held that though the relief for cancellation of lease could not be granted however, since the period for which the lease was given had expired due to efflux of time, the plaintiffs are entitled for delivery of possession over the disputed property after removal of the constructions made by defendants No.5 to 11. The plaintiffs claim for rent and damages for use and occupation @ Rs.130.00 per month until the date of delivery of possession was also decreed. Against the judgment and decree passed by this Court, the defendants second set filed Special Leave Petition No.12025 of 1988 before the Supreme Court which was dismissed by the apex court on 7-4-1992 in the meantime, however, one of the plaintiff-decree holders namely Smt. Kamla Devi had filed an execution case for executing the decree of possession and rent and damages against the judgment debtors. The execution application was numbered as execution case No.9 of 1990 and it was mentioned therein that the decree is being sought to be executed on behalf of the other decree-holders as well. During the pendency of the Special Leave Petition before the Supreme Court the execution case remained stayed but after the dismissal of the Special Leave Petition, the execution proceedings was restarted. An objection under Section 47, C.P.C. was filed on behalf of Smt. Lalita Devi who was one of the judgment-debtor and arrayed as defendant No.11 in the suit No.207 of 1970 inter alia to the effect that by virtue of two sale deeds dated 16-9-1988 and 12-2-1989 executed in favour of her son Sandip Tibrewal and one sale deed dated 16-10-1991 executed in favour of the objector by some of the decree holders the said mother and son have got 3/4th share in the property in dispute. Thus, the transferees having stepped into the shoes of the decree-holders the decree could not be executed against the said judgment debtors and the execution application should be rejected on that ground. It was also stated that Sandip Tibrewal was a necessary party having become owner of, 1/2 of the disputed property by virtue of the sale deed executed by some of the decree holders, hence, the execution could not proceed without impleading the said transferee as a party. It was also, stated that the suit having been tried by the temporary Additional Civil Judge, Gorakhpur, the Ist Additional Civil Judge, Gorakhpur, the Ist Additional Civil Judge, Gorakhpur in which court the execution application has been filed had no jurisdiction to proceed with the execution.

(3.) The executing court vide the order dated 22-7-1993 rejected the objections filed by the judgment-debtor applicant under Section 47, C.P.C. and held the execution application as maintainable. Aggrieved, against the said order, the judgment-debtor-revisionist has filed the present revision before this Court.