SUNANDA RAJENDRA NAHAR Vs. BHARAT UTTAMCHAND NAHAR

JUDGEMENT

(1.) By this application under Sec. 115 of the Civil Procedure Code, 1908 (hereafter, "the CPC", for short), the judgment debtor is challenging the rejection of the application under Sec. 47 of the CPC, raising an objection about the executability of decree on the ground of nullity.

(2.) Darkhast No.85 of 2021 was filed for executing a decree passed in Special Civil Suit No.1533 of 2008 dated 23 rd March 2020. The applicants in the execution petition filed an objection under Sec. 47 of the CPC, contending that the original plaintiff died on 16/2/2019. After 90 days, the suit is abated; the decree passed in such suit is nullity. Even the order allowing the application under Order 22 Rule 6 of the CPC is without jurisdiction. The second objection is that the defendant's status in the suit was that of a gratuitous licensee, and, therefore, the Civil Court has no jurisdiction to pass the decree. The Trial Court rejected the application under Sec. 47 of the CPC by the impugned order dtd. 9/12/2022.

(3.) Learned advocate for the applicants submitted that the original plaintiff died on 16/2/2019. Therefore, the decree passed on 23/3/2020 without bringing legal representatives of the plaintiff on record is a nullity and is without jurisdiction. The suit stands abated after the lapse of 90 days. No order of the Court declaring the suit abated is required. He submitted that the Civil Court had no jurisdiction to entertain a dispute between the owners and gratuitous licensee as only the Small Causes Court can decide such a suit. In support of his contentions, he relied on the following judgments: