CHANDRAKANTA Vs. MAHESH BROTHERS

JUDGEMENT

(1.) THIS revision is directed against the order dated 30.8.97 passed by the 11th Civil Judge, Class I, Indore, in Execution Case No. 61/92 allowing application of the respondent No.1 made u/s. 47 C.P.C. and directing re -delivery of possession of the house.

(2.) THE facts material for the purpose of this revision are these : - The applicant herein filed a suit (No. 61 -A/92) in the Court of IXth Civil Judge, Class I, Indore, for ejectment against one Smt. Kantaben who was carrying business in the name and style "Mahesh Brothers". In the suit the defendant was described as "Mahesh Brothers through proprietor Kantaben". The suit was decreed ex -parte on 21.2.94. In execution of the said decree the applicant has also obtained possession of the suit accommodation on 26.10.95. It is no more in dispute that on the date when the suit was filed Smt. Kantaben was already dead The respondent No. 2 Mahesh Kumar the son of late Kantaben made an application u/s. 47/151 C.P.C. contending that the decree having been passed against a dead person is a nullity and the same could not be, therefore, put to execution and the possession of the suit accommodation could not be obtained from him in execution of the said decree. He prayed for restoration of possession to him. The application was resisted by the applicant decree holder. The Court below after hearing both the parties passed the order impugned directing for re -delivery of possession of the suit accommodation to the respondent No.2.

(3.) THE contention of the learned counsel for the applicant decree holder is that the suit was filed not against Smt. Kantaben but against the proprietor firm and so the decree for ejectment passed in the suit is not only valid but the same could be executed against the respondent No.2 the LR of deceased Kantaben. it is further contended that the application u/s. 47 C.P.C. did not lie inasmuch as the decree stood fully satisfied by the time the application was made by the respondent No.2. Resort should have been made to the provisions of Rule 98 to 102 of O. 21 CPC. it is further contended. I am not impressed by the arguments.