Most. Shiv Kumari Devi v. Ramawtar Rai And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.11858 of 2014 ====================================================== Most. Shiv Kumari Devi Daughter of Badar Rai, Resident of villageHarnehiya, Telppa Sathi, Police Station- Shikarpur, District- West Champaran .... .... Petitioner

Versus

1. Ramawtar Rai son of Bhim Ray Resident of village- Chak Belsandi Police Station- Gaunaha, Tappa Jamhauli, District- West Champaran

2. Sk. Asin

3. Sheikh Yusuf

4. Sheikh Salami Both son of Md. Sadique @ Shahid All resident of village- Phulwaria, P.O. Rakhahi Tappa Ramgir, Pragana- Majhaua, Police Station- Shikarpur, District- West Champaran

5. Bibi Hasnata Raj daughter of Md. Sadique @ Shahid wife of Sk. Ali Hassan Resident of village- Sakhulahi, P.O. Gokhula, Tappa Ramgir, P.S.

Mainatand, Pragana Majhua, DistrictWest Champaran

6. Most. Hasnadina wife of Md. Sadique @ Shahid Resident of villagePhulwaria, P.O. Rakhahi, Police Station- Sheikhpur Tappa Ramgir, P.S. Shikarpur Pragana Majhua, District- West Champaran

7. Mangani Mahto

8. Lalan Mahto

9. Kishun Mahto All son of Bhola Mahato All resident of villageSalahuwania, P.O. Rakhahi, Police Station- Shikarpur Tappa Ramgir Pragana Majhua, District- West Champaran

10. Md. Ishaque son of Sk. Mela, Resident of village- Phulwaria, Pragana Majhua, Police Station- Sheikhpur, Tappa Ramgir, DistrictWest Champaran

11. Kanhaya Prasad son of Inardeo Prasad, Resident of villageDharampur, P.O.- Sathi Tappa Sathi, Pragana Mathua, DistrictWest Champaran

12. Ramji Rai son of Late Barhu Rai Resident of village- Sakhuawania, P.O. Rakhahi, Tappa Ramgir, P.S.- Shikarpur, Pragana, Mathua, District- West Champaran .... .... Respondents ====================================================== Appearance :

For the Petitioner : Mr.Baxi S.R.P.Sinha, Sr.Advocate Mr. Anand Kishore Choudhary, Advocate For the Respondent No.12 : Mr. Sanjay Kumar No.7, Advocate Mr. Anant Kumar Mishra, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR ORAL ORDER 08-03-2018 This application has been filed by the decree holder of Execution Case No.01 of 1997 for setting aside the order dated

Patna High Court CWJC No.11858 of 2014 (6) dt.08-03-2018 2/3 14.03.2014 passed by Sub Judge, Bettiah, West Champaran whereby and whereunder the learned Sub Judge impleaded the respondent no.12 as party to the execution case.

2. Heard learned counsels for the petitioner and the respondents.

3. The petitioner filed a Title Suit No.18 of 1986 against Ram Autar Rai and others. In the said suit, the defendant nos.12 to 15 appeared and filed written statement. They admitted the claim of plaintiff and denied any manner of concern with respect to the suit property. The remaining defendants did not appear and the suit was decreed ex-parte holding that the plaintiff was entitled to possession over the land in question. The intervenor respondent no.12 is one of the son of Barhu Rai who was defendant no.15 in Title Suit No.18 of 1986. The respondent no.12 claims right title and possession over the land which is under the execution proceeding. The learned counsel for the petitioner submits that the father of intervenor (respondent no.12) had filed written statement and admitted the claim of the plaintiff and so he is estopped from claiming his own title.

4. The learned counsel for the respondents on the other hand submits that the defendant no.15 Barhu Rai who was father of the intervenor respondent died during the pendency of the suit and on account of his death, the plaintiff did not take step for

Patna High Court CWJC No.11858 of 2014 (6) dt.08-03-2018 3/3 substitution. The suit was decreed against the dead persons. This intervenor claims his own right over the land in question and he being the legal heir is entitled to be substituted. Learned counsel further submits that the decree passed against the dead person is nullity and it cannot be executed against a dead person.

5. Be that as it may. The petitioner admittedly is son of Barhu Rai who was defendant no.15 in Title Suit No.18 of 1986. The father of the intervenor was not substituted and he remained on record even after his death. The decree was accordingly passed against dead person. In the present execution case, the deceased father of intervenor is still on record. The intervenor respondent no.12 claims to be in possession over the land in question. He being the legal heir filed the petition which was allowed and he was impleaded as party to the execution case. Thus, I find that the court below has not committed any jurisdictional error in impleading the intervenor-respondent who is none else than the son of the defendant no.15 (i.e., the deceased judgment debtor).

6. In the aforesaid facts and circumstances, this application is dismissed.

(Sanjay Kumar, J) B.Kr./- U