MINA DEVI KEDIA Vs. SITA DEVI KEDIA

JUDGEMENT

(1.) The legal representatives of the original judgment debtor Satya Narayan Mussaddi have filed this present revision. The facts leading to this revision are as follows :- The opposite party decree holder instituted the title suit No. 2104/80 and 2105/80 against the original judgment debtor Satya Narayan Mussaddi and one Tilok Chand Mussaddi for eviction and others ancillary reliefs. In the aforementioned suit both the defendants contested the same by filing the written statement. The suit was however, decreed on contest against them. The original judgment debtor preferred an appeal in this court being Appeal No. 225 and 226 of 1987 which was also dismissed. Pursuant to the original decree passed by the Trial Court the opposite party levied execution against the original judgment debtor. The revisionist allegedly received an information that the opposite party decree holders started execution against him and substituted the name of the legal representatives of the original judgment debtor without service of notice. It is stated by the petitioner that since the legal representatives of the original judgment debtor Satya Narayan Mussaddi had not been made parties in appeal before this Court : the final judgment passed by it is a nullity and consequently, the opposite party decree holders are not legally competent to proceed with the execution case. It is stated that the original judgment debtor Satya Narayan Mussaddi died on 8.6.91 and the judgment having been passed after his death i.e. on 22.7.91 is patently an illegality which is unenforceable in law. The learned trial court overrulling the objection of the petitioner allowed the prayer of the opposite party decree holders for the grant of police aid.

(2.) Mr. Roy Choudhury contended in support of the revisional application that the Bailiff who was deputed for effecting delivery of the suit property has not stated in his evidence that there was disturbance of public peace. It is further contended that even in the petition filed by the opposite party decree holder there is no mention of disturbance of public peace. Another question was mooted by the revisionist that though the application has been captioned under section 208 of the High Court Rules, it should have been filed under order 21 Rule 97. The application should have been considered under the provision of Order 21 Rule 101 C.P.C. In face of this inherent defects the learned executing court could not have mechanically granted police aid to the decree-holders.

(3.) Mr. B. Banerjee, the learned counsel appearing for the decree-holder opposite parties, while repelling the contention of the petitioner highlighted that the Bailiff has stated that there was beach of peace: while he made an attempt to deliver the suit properties to the decree holders.