LAWS(ORI)-1986-10-29

SARAT CHANDRA Vs. NARASINGHA

Decided On October 28, 1986
SARAT CHANDRA Appellant
V/S
NARASINGHA Respondents

JUDGEMENT

(1.) The facts giving rise to this civil revision are as follows :- On 14-5-1966, Sadhavani Patrani obtained a decree for recovery of possession of a double storied building in Jeypore town. She executed the decree in Execution Proceeding No. 35 of 1966. During its pendency, she expired on 20-11-1968. The petitioner filed an application on 7-1-1969 to be substituted in place of the deceased decree-holder as her legal representative alleging that Sadhavani executed a Will in his favour and registered it on 23-12-1959 and a Codicil on 25-9-1967 apart from adopting him as a son. The judgement debtors objected to the said application. Enquiry was conducted on the application of the petitioner and one witness was examined on commission. At the stage the objection of the judgement-debtors that they are real successors was directed by order dated 16-1-1970 to be registered as a Misc. Case under S.47, C.P.C. The relevant portion of the order reads as follows :-

(2.) In both the forums it was not disputed that the application of the petitioner dated 7-1-1969 was registered as M.J.C. No. 2 of 1970 which is a wrong admission on the face of it. The Executing Court held that the petition dated 7-1-1969 was wrongly directed to be registered as a Misc. Case. This inference is contrary to the fact borne out from the record. On merits the Executing Court held that since the said Misc. Case was dismissed for default and no steps have been taken by the petitioner for restoration of the same, according to law the order of dismissal passed cannot be recalled on the basis of application dated 4-2-1980. The further ground of dismissal was that the Will having been registered at Jeypore in respect of the property in Jeypore which was at one time within the jurisdiction of Madras High Court, the petitioner cannot establish his right as a legatee unless the Will and Codicil are probated. The third ground of dismissal was that the interest of the decree-holder not having been transferred by assignment in favour of the petitioner, he cannot be allowed to continue and proceed with the Execution Case after death of the deceased on the language of O.21, R.16, C.P.C. The appellate Court found that the application of the petitioner in 1969 for being substituted as legal representative of the deceased decree-holder on the strength of a will of the deceased was registered as M.J.C. No. 2 of 1970 as per order No. 63 dated 16-1-1970 as one under S.47, C.P.C. and it was dismissed for default on 26-10-1979. It held the appeal not to be maintainable. The relevant portions of the appellate order are extracted below :

(3.) Mr. Y.S.N. Murty, the learned counsel for the opposite parties (judgement-debtors) submitted that the civil revision has been filed against the appellate order wherein it was held that the appeal was not maintainable. Hence, the correctness of that question is only available to be raised. Mr. B.B. Mohanty, the learned counsel for the petitioner on the other hand, submitted that an appeal against the order of the Executing Court rejecting the application dated 4-2-1980 was maintainable.