PRAKASH DHIMAR Vs. KAMAL KUMAR

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India the petitioners are challenging the validity of the impugned order dated 8.10.2009 passed by learned Executing Court in Execution Case No.35-A/1999 whereby the objections raised by the judgment debtors/petitioners have been rejected.

(2.) The facts necessary for the disposal of this petition are that a suit for removal of the encroachment was filed by the respondents 1 to 4. The suit was decreed. According to the decree-holders/respondents 1 to 4, the defendants 1 to 8 have encroached upon the bylane of the highway, as a result of which his approach to the bylane from his house has been totally obstructed.

(3.) Learned Trial Court framed Issue No.5 and 6 specifically whether the defendants 2 to 8 have encroached upon the bylane of the highway, as a result of which the plaintiffs are facing great difficulty to approach the highway on account of the said encroachment. After recording the evidence of the parties the suit of plaintiff was decreed against the defendants 5, 7 and 8, namely, Prakash Dhimar, Hariram and Raghuvar Jamadar. The petitioner No.3 is said to be the adopted son of 8 th defendant-Raghuvar Jamadar. When the decree was put to execution, an objection was raised on behalf of the judgment-debtors that the decree has been passed against dead person since before passing the judgment and decree 8 th defendant Raghuvar had died and without bringing the L.Rs on record the decree which has been passed has been passed against a dead person and thus, it is null and void. This objection was opposed by the decree-holders.