MRITYUNJAY KUMAR Vs. RAM NANDAN RAI

JUDGEMENT

(1.) HEARD Mr. Naresh Chandra Verma, learned counsel for the petitioners. No one despite service of notice has appeared on behalf of the opposite parties though from the records it transpires that one Mr. Mahendra Thakur an Advocate of this Court had filed Vakalatnama on behalf of O.P. No. 1.

(2.) THE facts giving rise to this civil revision application lie in a very narrow compass.

(3.) MR . Naresh Chandra Verma, learned counsel for the petitioner, would submit that there is an apparent jurisdictional error in the impugned order, inasmuch as the court below has failed to take into account that if the execution case had not abated, its restoration was well permissible within the ambit of Section 151 C.P.C. He has further submitted that the execution case being levied only by the father of the petitioners who was the plaintiff in the connected suit, his death was occasioned on account of his illness and the execution case had only been dismissed for default some 15 days earlier to his death. He has, therefore, proceeded that the court below having taken into account the nature of execution proceeding and the right of the petitioners, the heirs and the legal representative of the sole plaintiff, who had died during the execution stage had to be protected by allowing them to prosecute the execution proceeding for which restoration of the execution case was in tune with the provisions of the Code of Civil Procedure.