MOHD.SHARFODDIN Vs. MD.ZAHEERUDDIN

JUDGEMENT

(1.) This Civil Revision Petition is directed against the order dated 21.11.2019 in E.A.No.70 of 2019 in E.P.No.90 of 2011 in O.S.No.244 of 2006 on the file of the Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Sangareddy (for short, execution Court).

(2.) The brief facts of the case are that respondent No.1 filed O.S.No.244 of 2006 before the executing Court against Mohd.Sharfoddin, father of the petitioners herein, and respondent Nos.2 to 4 herein for specific performance of an agreement of sale. The said suit was transferred to the Court of Additional Junior Civil Judge, Sangareddy and re-numbered as O.S.No.441 of 2007. As Mohd.Sharfoddin did not contest the matter, he was set ex parte on 21.09.2006. Respondent Nos.2 to 4 herein filed a common written statement admitting the suit claim and prayed to decree the suit. Accordingly, the said suit was decreed, by judgment and decree dated 30.01.2008, against respondent Nos.2 to 4 under Order XV Rule 1 of the Civil Procedure Code, 1908 (for short, CPC). Thereafter, Mohd.Sharfoddin filed an application to set aside ex parte decree passed against him along with condonation of delay application in I.A.No.1985 of 2008, but the same was dismissed on 30.12.2008, upon which, his right to file written statement stood forfeited. Subsequently, the suit was re-transferred to the execution Court with the same number. Mohd.Sharfoddin though contested the suit, he could not file written statement and adduce evidence in view of forfeiture of his right in the order dated 30.12.2008, and the suit was decreed against him by judgment and decree dated 09.06.2011. The said judgment and decree became final as no appeal was preferred by the defendants.

(3.) Thereafter, respondent No. 1 filed E.P.No.90 of 2011 before the execution Court. While E.P.No.90 of 2011 was pending, Mohd.Sharfoddin died on 29.12.2017 and the petitioners herein were brought on record as the legal heirs of Mohd.Sharfoddin. Thereafter, the petitioners/legal heirs filed E.A.No.70 of 2019 under Order XXI Rule 29 of the CPC stating that they filed a suit in O.S.No.251 of 2019 before the Senior Civil Judge, Sangareddy (for short, trial Court) against the respondents for partition and separate possession in respect of the suit schedule property; that in the said suit, they filed I.A.No.1236 of 2019 seeking a direction to the respondents not to alienate the suit property and I.A.No.1237 of 2019 to stay the execution proceedings in E.P.No.90 of 2011 in O.S.No.244 of 2006 and they are pending adjudication; and that respondent No.1, knowing the pendency of the said suit, suppressed the same and insisting the execution Court for getting execution of the document and sought to stay the execution of E.P.No.90 of 2011 till disposal of O.S.No.251 of 2019, which is pending before the trial Court.