DADA S O ANANDA Vs. GANGUBAI

JUDGEMENT

(1.) This is an application for revision under section 115 of the Code of Civil Procedure against an order passed by the Civil Judge, Junior Division, Bhokerdan, rejecting the application of the petitioners for joining them as parties to the Darkhast proceedings.

(2.) One Vithoba had filed a suit for possession against respondents Nos. 2 to 9 in respect of several lands. It appears that he died during the pendency of the suit and after his death his wife Dwarkabai and his mother Gangubai respondent No. 1 were brought on record as his heirs. A decree for possession in respect of the properties in suit was passed in their favour. That decree was also affirmed by the High Court in second appeal. This Gangubai then alone filed a Darkhast being Regular Darkhast No. 5 of 1972 against respondents Nos. 2 to 9 in the Court of Civil Judge, Junior Division, Bhokerdan, for execution of the decree for possession in respect of the suit lands. It appears that after the High Court affirmed the decree, Dwarkabai executed an agreement of sale in respect of suit lands in favour of petitioner No. 1 and also executed a registered sale deed in pursuance of this agreement. While this Darkhast was pending, the petitioners made an application (Exhibit 25) to the trial Court on 7th August, 1972 contending that they should be joined as a party to the regular Darkhast No. 5 of 1972 filed by respondent No. 1 as the representative of the decree holder Dwarkabai. This application was opposed and was taken into consideration by the learned Judge along with other applications and a common order was passed. He rejected this application of the petitioners on the ground that the said deed appears to have been executed by Dwarakabai, wife of Ranganath Sahane, while the decree holder was Dwarkabai Vithoba, and therefore, the identity of the decree-holder was not established. He also held that even if she had transferred the properties, they are transferred during the pendency of the suit and they are hit by the doctrine of lis-pendens and, therefore, rejected application. It is against this order, that the present Civil Revision Application has been filed.

(3.) In my opinion, this order cannot be sustained at all. So far as the identity of Dwarkabai is concerned, it is the case of the petitioners that Dwarkabai, widow of Vithoba, has re-married Rangnath Sahane and that is why she after the re-marriage has become Dwarkabai Rangnath Sahane. The learned Judge has, therefore, committed an error in rejecting the application on the ground that the identity was not established. It is open to the petitioners to establish the identity if it is challenged by the respondents that the seller was not decree-holder Dwarkabai Vithoba.