LAXMAN NAIK Vs. ASHAMONI DEI

JUDGEMENT

(1.) THE decree -holders are the petitioners against an order under Section, 47, Code of Civil Procedure, allowing the objection of the judgment -debtors that the decree is not executable.

(2.) PLAINTIFFS ' suit was for a declaration of title and recovery of possession against the defendants. The matter came upto this Court in Second Appeal No. 12 of 1975 and the decree was confirmed. During the pendency of the Second Appeal, respondent No. 5, who was defendant No. 5, died leaving behind his legal representatives. However, no substitution was made in his place in the Second Appeal nor was the fact brought to the notice of this Court. The decree was confirmed without taking note of the death of respondent No. 5. When an application for execution was filed, the application under Section 47, C. P. C. was filed objecting to the executability of the decree. This objection has been found favour with the Executing Court and it was held that the decree is not executable. Hence this Civil Revision.

(3.) IN the result, while confirming the decision of the Executing Court that it can go behind the decree, I direct the Executing Court to examine the effect of the death of respondent No. 5 making it clear that in absence of specific evidence as to the existence of the legal representatives the decree would be executable against the. other judgment debtors. The Civil Revision is disposed of with the above directions. There shall be no order as to costs.