BABULAL CHHAJER Vs. LEGAL HEIRS OF GULANBANBI

JUDGEMENT

(1.) Heard Mr A C Sarma, the learned Senior Counsel appearing on behalf of the petitioner, assisted by Mr G Bharadwaj and Mr P Bhowmick, the learned counsel appearing on behalf of the respondents.

(2.) The revisional jurisdiction under Sec. 115 of the Code of Civil Procedure, 1908 (hereinafter, referred to as "the Code"), has been invoked to challenge the order dtd. 20/8/2022, passed by the learned Court of the Munsiff No. 2, Goalpara ('the learned Executing Court'), in Misc (Ex) No. 38 of 2018, whereby an application under Sec. 47 of the Code, filed by the respondents herein, was allowed, holding, inter alia, that the execution proceedings could not be maintained, inasmuch, as the Judgment and Decree dtd. 29/11/2001, in Title Suit No. 45 of 1973, was passed against the defendant, who was already dead on 25/6/2000.

(3.) This Court has duly taken note of the submission made by Mr A C Sarma, the learned Senior Counsel to the effect that, although the defendant Md Abdul Hai had expired on 25/6/2000, but then also his estate was duly represented by his wife, who was the defendant No. 1 (i), and as such, the impugned order requires to be interfered with. In that regard, the learned Senior Counsel referred to the Judgment of the Supreme Court in the case of Shiv Shankara and Anr. Vs. H P. Vedavyasa Char; reported in (2023) 13 SCC 1, wherein the Supreme Court observed that non-substitution of the legal representatives, on the death of one or several defendants would not lead to abatement of the suit, if the estate/interest was fully or substantially represented jointly by other defendants. He submitted that the Defendant No. 1 (i) was the wife of Late Abdul Hai and she represented the estate of Late Abdul Hai upon his death. This aspect was not taken into consideration by the learned Executing Court. The learned Senior Counsel further submitted that the counsel, who was representing the Defendants in the suit though appeared but did not inform the Learned Trial Court as regards the death of the Defendant No. 1.