SATYASHEEL KUMAR Vs. NAVIN KUMAR SINGH

JUDGEMENT

(1.) The present petition has been filed under Article 227 of the Constitution of India against the order dtd. 4/12/2018 passed by the learned Sub Judge-7, Begusarai in Execution Case No.1/2016 whereby and whereunder the petition dtd. 3/2/2018 filed on behalf of the judgment debtor has been rejected.

(2.) The respondents are decree-holders and they filed Title Suit No. 171 of 2007 against the grandfather, father and uncle of the petitioner in the court of learned Sub Judge, Begusarai. The suit was filed for declaration of title in respect of Schedule-A property and for recovery of possession from defendants 1st and 2nd set by demolishing the construction made by them on the suit land as well as for mesne profit and injunction. The defendants appeared and filed their written statement controverting the claim of the plaintiffs. Title Suit No. 171 of 2007 was finally heard and decided vide judgment and decree dtd. 8/9/2016 on contest in favour of the plaintiffs. The defendants 1st set, who are members of joint family of the petitioner, preferred appeal before the learned District Judge, Begusarai vide Title Appeal No. 14/2016 and the said title appeal is still pending for final hearing. Meanwhile, the decree- holders filed Title Execution Case No. 01/2016 in the court of learned Sub Judge- 1st , Begusarai, which is pending before the court of learned Sub Judge-VI, Begusarai. In the execution case, the petitioner and other defendants appeared and challenged the maintainability of the execution proceeding by filing a petition on 3/2/2018. The decree-holders filed their objection on 17/2/2018 to the petition dtd. 3/2/2018 by way of a rejoinder. Both parties were heard and the learned executing court vide the impugned order dtd. 4/12/2018 rejected the petition filed by the petitioner.

(3.) The learned counsel appearing on behalf of the judgment-debtor no.2/petitioner submitted that the learned executing court passed the order erroneously as it failed to appreciate that the execution proceeding could not be continued as the judgment and decree was passed against a dead person and for this reason, the judgment and decree are nullity and cannot be executed through the process of law. The learned counsel further submitted that the defendant no.7 (f), namely Sageeta Devi died on 13/3/2015 before the judgment and decree dtd. 8/9/2016, but without substituting her legal heirs/representatives in her place and without excluding her name from the plaint, the judgment and decree came to be passed against a dead person making the decree nullity and not executable. In support of his contention that the decree passed by the learned trial court against a dead person is nullity, the learned counsel placed reliance on the decision rendered in the case of Gurnam Singh (D) through L.Rs.and Ors. Vs. Gurbachan Kaur (D) by L.Rs.and Ors. reported in 2017 (2) PLJR 414 (SC). Further, the learned executing court failed to consider that the suit property as mentioned in the plaint is non-existent and decree could not be executed due to vague description and ambiguity over the boundary. The learned counsel further submitted that the land is non-existent and unidentifiable and the suit land has got no separate identity and the part area and plot number cannot be demarcated being part and parcel of the residential house of the petitioner, but the learned executing court completely overlooked this important aspect of the matter. The learned counsel further submitted that the claim and defence of defendants 1st set is joint and inseparable, hence, on account of death of Sangeeta Devi and non-substitution of her heirs, the suit became incompetent and the judgment passed in the suit is illegal and bad in the eyes of law and the same cannot be executed. The learned counsel further submitted that the respondents did not answer the claim of the petitioner about nonexistence of disputed property and in the counter affidavit, there is no specific denial about the fact of Schedule-A property being non-existent which amounts to admission as evasive denial is no denial. Even the boundary of the property given in the counter affidavit does not tally with the boundary of disputed land mentioned in Schedule-A of the plaint which shows description of the said land as given in Schedule-A of the plaint is false and imaginary. The plaintiffs have not furnished any sketch map with the plaint and the learned trial court did not consider any map whatsoever. However, reliance placed on Annexure A of the counter affidavit which is a rough sketch map is misconceived. Moreover, it is not in consonance with the boundary mentioned in Schedule-A of the plaint. There is no separate block of suit land rather it has been amalgamated with the house of the petitioner. Even the learned executing court has not referred the relevant paragraphs of the judgment in the impugned order with regard to finding about existence of suit property and, for this reason, the impugned order is not sustainable and fit to be set aside.