NARENDRA RAMCHANDRA CHAUHAN Vs. GAJANAN

JUDGEMENT

(1.) The original defendants to the Regular Civil Suit No. 11 of 1974 have challenged in the instant revision the order dated 5th December, 1994 passed by the Civil Judge, Junior Division, Murtizapur in Regular Darkhast No. 41/77 pending before him. Short facts giving rise to the instant revision are that one Dhanaji had obtained a decree for possession of the suit property against one Ramchandra of whom the present applicants are the legal representatives having been brought on record during the pendency of the suit itself. Dhanaji then had initiated proceedings of execution in Regular Darkhast No. 41 of 1977 against the present applicants. During the pendency of this execution proceeding Dhanaji died on 14.8.1978. One Gopal his eldest son, was brought on record in the execution proceedings as the only legal representative of decreased Dhanaji. This Gopal, however, prayed for permission to withdraw the execution proceedings and the Executing Court on 18.9.1978 permitted him to withdraw the Regular Darkhast No. 41 of 1977. The present non-applicant Nos. 1 to 3, however, on 19.10.1978 applied for review of the order dated 18.9.1978 permitting withdrawal of the execution proceeding to Gopal, claiming themselves to be the real heirs to the exclusion of Gopal of deceased Dhanaji. This claim they put forth on the basis of the Will allegedly executed by Dhanaji in their favour the review application filed by the non-applicants 1 to 3 was allowed by the Executing Court and it has ordered that the execution shall proceed further and therein the issue as to who are the legal heirs would he decided after recording evidence. The challenge put forth to this order was rejected by this Court in Civil Revision Application No. 479 of 1991 decided on 7.10.1991.

(2.) It is then the present applicants filed an application raising preliminary objection to be maintainability of the execution at the instance of the non-applicant Nos. 1 to 3 questioning the continuance of the execution proceedings in the absence of proof of the non-applicant Nos. 1 to 3 having become heirs of deceased Dhanaji in relation to the suit property not the strength of the Will. The Executing Court by the order under challenge since has dismissed the said application, the present revision is filed by the applicants.

(3.) Heard Mr. Thakkar and Mr. Gilda, learned Counsel for the applicants and the non-applicants respectively and perused the impugned order. It has to be held that the Executing Court has rightly not accepted the contention raised by the applicants that the execution proceedings were liable to be dismissed even without recording oral evidence. The Trial Court has already framed issues on the basis of the objections raised by the applicants and the parties are directed to lead evidence. One of the issues undisputedly is as to whether the non-applicants are the legal representatives of deceased decree-holder Dhanaji. This issue apparently cannot be decided without recording evidence. Dropping of the execution proceedings even without recording evidence as prayed for by the present applicants could not have been possible to the Executing Court. The refusal on the part of the Executing Court to grant the prayer as made by the applicants before it, therefore, cannot be in any way found to be illegal. Here is thus no merit in the instant revision application and it, therefore, stands dismissed. No order as to costs. Revision Application dismissed.