Rifakat Ali and Another vs Shyam Sunder and Others

Anjani Kumar, J.—Heard Sri Ramendra Asthana, learned counsel for the petitioners.

The petitioners, who are judgment debtors, filed an objection to the further execution of the decree on the ground that the heirs of the deceased-decree holder have not been brought on the record and, therefore, this execution cannot proceed. The executing court rejected this objection and continued with the execution. Aggrieved thereby the petitioners filed a revision before the revisional court. The revisional court has categorically recorded a finding that there is no dispute that during the pendency of the execution and after the death of the deceased decree holder their heirs have executed a relinquishment deed in favor of remaining decree holders. In this view of the matter provision of Order XXI Rule 15 is applicable and there is no defect which may bar the execution of the decree.

Learned counsel for the petitioners, Sri Ramendra Asthana, argued that reading Order XXII Rule 12, C.P.C. along with Order XXI Rule 15 and in view of law laid down by this Court in Manmohan Dayal and Others Vs. Kailash Nath and Others, , which is a Division Bench decision and a recent decision Makkhan Lal Jaiswal and Others Vs. Executive Engineer and Others, . He particularly relied upon para 6 of the judgment which is reproduced below :

"6. In Manmohan Dayal and Others Vs. Kailash Nath and Others, , Division Bench of this Court has observed that if an execution is already pending at the instance of the decree holder, his legal representatives, after his death need not make a fresh application for execution and it is sufficient that they apply for continuation of the proceedings in the pending execution."

In the Division Bench decision of this Court in Manmohan Dayal and Others Vs. Kailash Nath and Others, , in para 2 the Division Bench referred to a Full Bench decision Baij Nath and Another Vs. Ram Bharos , that the legal representatives of two deceased decree-holders were entitled to ask for continuation of the execution proceedings without moving any application for execution. In the facts of the case in hand particularly where the deceased decree-holder had already executed relinquishment deed in favour of remaining decree-holders the question of bringing on record their heirs (deceased decree-holders) is not at all necessary either in law or in the interest of justice.

In these circumstances I do not find any error committed by the courts below. This writ petition has no force. It is accordingly dismissed.