NILMANI PRADHAN Vs. NAROTTAM PRADHAN

JUDGEMENT

(1.) THIS civil revision is directed against the order dated 1-7-2006 passed by the Civil Judge (Junior Division), Athamallik rejecting an application (I. A. No. 6 of 2005)filed by the judgment-debtor-petitioners under Sections 47 and 151 of the C. P. C. with a prayer not to proceed with the execution proceeding as the decree out of which it arose was a void one.

(2.) CASE of the petitioners, as narrated in the impugned order, is that original defendant No. 1 - Bimbadhar Pradhan died on 8-7-1987 during pendency of the final decree proceeding. No attempt whatsoever was made by the decree-holder-opposite party to substitute the legal heirs of said defendant No. 1. As such, final decree was passed against a dead man. According to law, a decree passed against a dead man is a nullity. Further, during pendency of the final decree proceeding, an Amin Commissioner against Order of P. K. Patra, Civil Judge (Jr. Division), Athamallik, D/- 1-7-2006. was deputed to the suit land who allotted the land and ignored the claim of the L. Rs. of defendant No. 1. That Amin had visited the suit land and took L. T. Is. and signature of some minor petitioner judgment-debtors and thus the report of the said Amin commissioner was not at all acceptable. Since the procedure adopted by the said Amin commissioner was not according to law, the judgment-debtor-petitioners initiated a proceeding under Section 151, C. P. C. vide I. A. No. 4 of 2005 before the Civil Judge (Junior division), Athmallik praying therein to initiate a fresh final decree proceeding. The said interim application was dismissed and against that the petitioners preferred a revision before this Court. In the said revision, the decree was challenged on the ground that it was not acceptable under law as the same was a nullity. Since this Court disposed of the Civil Revision with an observation that plea of death of the party be taken in the lower Court, the proceeding in question was initiated.

(3.) CASE of the opposite party-decree-holder is that final decree was drawn during the lifetime of defendant No. 1. The Amin had served the spot notice on the said defendant and report of the Process Server is the evidence. In Execution Proceeding No. 10 of 1994 initiated by the decree-holder-opposite party, notice was sent through the process Server, who had reported that the said defendant No. 1 was absent in his house and had been to some other place. Thereafter, fresh notice was issued through the process Server, who reported that the said defendant was dead. Accordingly, L. Rs. of the said defendant were substituted. Further case of the decree-holder-opposite party is that the plea of death of defendant No. 1 was not taken by the judgment-debtor-petitioners either during the final decree proceeding or during pendency of I. A. No. 4 of 2005 and such plea taken at a belated stage is an afterthought and with a view to deprive the decree-holder-opposite party of enjoying the fruits of the decree. Moreover, the petition was also not maintainable.