RANJIT SINGH Vs. JITO

JUDGEMENT

(1.) This Execution Second Appeal is directed against the judgment of the learned Additional District Judge, Ferozepore dated August 2, 1973, whereby the order of the executing court dated April 28, 1971 dismissing the objection of the judgment debtor, was upheld.

(2.) Brief facts giving rise to this Execution Second Appeal are that a decree for possession of the land measuring 15 kanals 7 marlas was passed in favour of Smt. Jito, Kartar Singh and Smt. Mahan Kaur by the Additional Sub-Judge Ferozepore, on June 14, 1967, against the present appellants (hereinafter referred to as the judgment debtors). The judgment debtors filed an appeal against the said decree which was also dismissed by the Additional District Judge, Ferozepore, vide judgment dated July 31, 1958. In the execution of the said decree symbolic possession of the said land was delivered to the respondents. It was thereafter that the judgment debtors filed an application under section 144 read with section 151 of the code of Civil Procedure that they be restored possession of 114th share of the said land on the ground that the decree passed in favour of Mahan Kaur was wholly void and nullity as she had already died before the passing of the decree in her favour by the trial Court on July 14, 1967. Several other objections were also raised by the judgment-debtors with which we are not concerned in this appeal. The objection raised by the judgment. debtors was overrated by the executing court and their petition was dismissed vide orders dated April 28, 1971. The judgment-debtors went in appeal against that order which was also dismissed as stated above.

(3.) The learned counsel for the appellants has challenged the correctness of the judgment of the Courts below and argued that the decree passed in favour of Mahan Kaur was a nullity and, therefore, in executable. In support of his argument the learned counsel has relied upon Achhar Singh etc. V. Smt. Ananti,1971 CurLJ 114, Ramsewak Mishra and another V. Mr. Deorati Kaur and others, 1963 AIR(Ori) 88 Paran Singh and others V. Hazara Singh and others.,1966 CurLJ 216, Tulsi Prasad Sahai V. Ramraj Ahir, 1923 AIR(All) 414 and Jai Narain Ram Lundia V. Kedar Nath Khetan and others, 1956 AIR(SC) 359, so far as the judgment of the Supreme Court is concerned it has absolutely no baring on the facts of the present case and it is, therefore, not necessary to discuss the same in detail. The other decision relied upon by the learned counsel are also of no help as in these cases the decree passed in favour of the dead persons had been challenged in appeal and, therefore, rightly set aside. None of those cases relate to a case where the decree passed in favour of the dead person had been challenged in execution proceedings.