SOBHA MISRA Vs. VINOD KUMAR

JUDGEMENT

(1.) THE appellants / objectors have directed this appeal under Section 100 of CPC being aggrieved by the judgment and decree dated 14. 08. 2007 passed by District Judge, Betul in Civil Regular Appeal No. 9-A/2007 affirming the order dated 6. 3. 2007 and 20. 2. 2007 passed by Additional Civil Judge class-I, Betul in Execution Case No. l75-A/00 (T. D No. 23/06) dismissing their separate applications filed under Order 21 Rule 97 of CPC.

(2.) THE facts giving rise to this appeal in short are that the respondents No. 1 and 2 herein filed a Civil Original Suit No. 20-A/99 against the respondents No. 3 to 5 for eviction with respect of some premises the same was decreed by the trial court vide judgment and decree dated 29. 6. 2002, on challenging the same by the respondents No. 3 to 6 in their two separate Civil Regular Appeals No. 3-A/03 and 15-A/03 the the same were dismissed, thereafter respondents No. 3 to 6 filed S. A. No. 456/03, on consideration the same was also dismissed by this Court vide order dated 11. 1. 2005. Accordingly, aforesaid decree passed by the trial Court had affirmed against the respondents No. 3 to 6. Subsequently on filing the execution proceedings by the respondents No. 1 and 2 against respondents No. 3 to 6 for taking possession of the premises and recovery of the sum, the appellants herein respectively filed their separate applications under Order 21 Rule 97 of CPC stating that initially their father and the predecessor of respondents No. 3 to 6 namely Nandlal Tiwari was tenant in the disputed premises and after his death they along with respondents No. 3 to 6 inherited such rights in the disputed accommodation and in such capacity they are also in possession of such accommodation as a tenant. The aforesaid decree was obtained by the respondents no. 1 and 2 without impleading them to be the party as defendants, as such without giving any opportunity of hearing to them, hence such decree is neither binding nor executable against them and resisted the execution proceeding on such ground.

(3.) THE averments of such applications were opposed by the respondents No. l and 2 in their reply stating that the appellants are neither the tenant nor in possession of the disputed accommodation, hence, they did not have any locus- standi to resist the execution of the decree. It is also stated by the respondents that the present appellants never inducted in the tenant premises. The married daughter of the tenant could not be treated as a member of the family. The rent of the disputed accommodation was not paid for a longer period i. e. years together by any of the appellants.