MUSHEER ALAM JAHANGIR Vs. ANIL KUMAR GUPTA

JUDGEMENT

(1.) Petitioner is the son of decree holder and the instant civil miscellaneous petition has been filed for quashing the order dtd. 24/7/2018 by which execution proceeding has been dismissed for default by learned Civil Judge (Sr. Division) 1st Dhanbad in connection with Execution Case No.46 of 2011.

(2.) It is submitted by learned counsel on behalf of petitioner that the execution case arises out of HRC Case No.3 of 2002 which was disposed of in favour of father of the petitioner by order dtd. 16/9/2002 in which the rent was fixed. Despite the enhancement of rent, it is contended that the payment was not made. Consequently, the execution proceeding was initiated under Sec. 23 of Bihar Buildings (Least, Rent & Eviction) Control Act, 1982 in the Court of learned Civil Judge (Sr. Division) 1st Dhanbad. During the pendency of the execution proceeding, the decree holder died and later unfortunately, the counsel appearing on behalf of the decree holder also died on 21/7/2018 consequently, the case was dismissed on 24/7/2018. This order of dismissal of execution case for default, is under challenge before this Court.

(3.) It is submitted by learned counsel on behalf of petitioner that there is no provision as such of substitution in execution case in view of Order XXII Rule 12 of the CPC. Instead of executing the decree, the learned executing Court erred in dismissing the execution case for default.