SHASHI SHEKHAR OJHA Vs. PUSHPA DEVI

JUDGEMENT

(1.) The present petition has been filed by the petitioners challenging the order dtd. 2/9/2024 passed by the learned Sub Judge-II, Dumraon, Buxar in Execution Case No. 05 of 2008, whereby and whereunder the learned Sub Judge has ordered for deletion of names of deceased-decree holder as well as judgment debtors and bringing on record their legal heirs and also allowed correction of some typographical errors.

(2.) Briefly stated, the facts of the case are that one title suit bearing Title Suit No. 53 of 1968 was instituted by the plaintiffs/respondents seeking a decree of redemption of a mortgage bond dtd. 3/7/1996 executed by one Mahendra Missir in favour of Nandlal Ojha and others upon receipt of a sum of Rs.2,500.00. The plaintiffs further sought a direction against the defendants to redeem the mortgage and to deliver possession of the mortgaged property, failing which a final decree was sought to be prepared and delivery of possession to be effected in favour of the plaintiffs. Plaintiffs claimed that the mortgaged property was partitioned between the defendants 3rd and 4th parties. Subsequently, the defendants 3rd and 4th parties sold 12 Anna share of the property to the plaintiffs through three sale deeds dtd. 24/11/1964. The plaintiffs further submitted that they tendered the mortgage amount, but the defendants refused to accept the same, giving rise to suit filed by the plaintiffs. The defendants in their written statement contended that in 1926, Mahendra Missir executed two mortgage deeds for a total sum of Rs.5,000.00, one of which pertained to 5.88 acres for Rs.2,500.00. It was agreed at the time of mortgage that both deeds would be redeemed simultaneously. The defendants 4th party continued to cultivate the entire 11.26 acres of land and used to settle account with the defendants-2nd party. The partition story of the plaintiffs was denied by the defendants as false. The defendants further asserted that Ramshakal Mishra and others never came into possession of the property as alleged by the plaintiffs and the vendors of the plaintiffs had no legal right to sell Mahendra Missir's property. It was also contended that Mahendra Missir had executed a registered Will on 19/10/1940, bequeathing all his properties described in Schedules-I, II and III of the plaint to defendant-Baleshwar Mishra. Upon Mahendra Missir's demise, Baleshwar Mishra inherited his property by virtue of this will, which was duly probated by the court on 29/5/1965. Thereafter, Baleshwar Mishra executed an agreement to sell for entire 11.26 acres to the defendants under a registered agreement to sale. The defendants further contended that the right to redeem the mortgage was lost due to the statutory limitation period, as no steps were taken by the plaintiffs to redeem the mortgage within the prescribed time. They contended that the sale deeds relied upon by the plaintiffs were illegal, forged, without consideration and were executed by individuals without any valid title and thus were void in the eyes of law. Therefore, the plaintiffs had no equity of redemption, nor was there any relationship of mortgagor and mortgagee. The said Title Suit No. 53 of 1968 was dismissed vide judgment and decree dtd. 21/9/1987. Aggrieved by the dismissal, the plaintiffs/respondents filed Title Appeal No. 147 of 1987 before the learned District Judge, Buxar, challenging the judgment and decree dtd. 21/9/1987 passed in Title Suit No. 53 of 1968. The Title Appeal No. 147 of 1987 was allowed by a judgment dtd. 25/8/2000, wherein the trial court's judgment and decree were reversed. Against the said appellate judgment, the defendants preferred Second Appeal No. 400 of 2000, which is still pending. It further transpires that during the pendency of Second Appeal No. 400 of 2000, the respondents attempted to negotiate the sale of the suit land and I.A. No. 2134 of 2001 under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short 'the Code') was filed and this Court directed for maintenance of status quo. During the pendency of the said Second Appeal, the plaintiffs-respondents moved an application for the preparation of a final decree, which was allowed by the trial court vide order dtd. 25/7/2008 passed in Title Suit No. 53 of 1968 and a final decree was prepared. Aggrieved by the preparation of the final decree, the defendant-petitioners filed Title Appeal No. 44 of 2008 before the learned appellate court. However, the said appeal was dismissed for default and an application for restoration of the same is pending. In the meantime, the plaintiffs/respondents instituted Execution Case No. 05 of 2008 for the execution of the judgment and decree dtd. 25/8/2000 before the court of the learned Sub-Judge-II, Dumraon, Buxar. The final decree in Suit No. 53 of 1968 was passed on 12/8/2008, in which names of multiple individuals were included, some of whom were listed as minors. The decree holders through an application dtd. 30/5/2024 sought to amend the execution list by substituting certain names, however the said application was rejected vide order dtd. 1/8/2024, passed by learned Sub Judge II, Dumraon, Buxar. Thereafter, the decree holder, through an application dtd. 14/8/2024, sought to amend the execution list by substituting certain names, including minors with other individuals. This application was allowed vide order dtd. 2/9/2024 and the same is under challenge before this Court.

(3.) Learned senior counsel appearing on behalf of the petitioners submitted that the decree holders/plaintiffs/respondents earlier filed an application dtd. 30/5/2024 under Order 22 Rule-4 read with Sec. 151 of the Code for deletion of names of some judgment debtors, which was dismissed by the learned executing court vide order dtd. 1/8/2024. No liberty was sought or granted for filing of another application. Learned senior counsel further submitted that impugned order is unjust as it goes beyond the scope of the decree passed by the court and violates settled legal principles governing the execution of decrees. The decree had attained finality and any alteration in the decree at this stage would amount to a modification of the judgment that is binding and executable. The learned executing court permitted the substitution of heirs for certain judgment debtors, even though the legal heirs had either already been represented in the original suit or had been deliberately excluded and the learned executing court failed to appreciate that such amendments at the stage of execution are impermissible under the law. Learned senior counsel further submitted that the learned Sub Judge, in passing the impugned order, has exceeded the jurisdiction of an executing court and allowed the amendment altering the decree itself. Any modification in the decree cannot be allowed, but the learned executing court allowed the same and hence, the impugned order is bad, inoperative and not sustainable in the eyes of law.