Bharat Singh vs Vlllth A.D.J.,Kanpur Nagar & Ors.

R.K. Mahajan, J.—This is a writ petition filed under Article 226 of the Constitution in the nature of Certiorari quashing the impugned order dated 28297 passed by Respondent No. 1 in Civil Revision No. 123/95 Kishori Lal v. Man Mohan, contained as Annexure3 to the writ petition.

Facts giving rise to this petition are that Kishori Lal filed an Execution Petition No.98of 1968 Kishori Lal v. Man Mohan for execution of a decree of eviction passed in Original Suit No. 988 of 1966 regarding accommodation situate in premises No. 34/88 Ahata Sawai Singh, Kanpur that during the pendency of the aforesaid execution case the decreeholder Kishori Lal and Man Mohan Lai, the Judgmentdebtor had died; that respondent Nos. 2 to 15 are the legal representatives of the decree holder; that a request was also made by way of filing a substitution application for substituting the sons of late Man Mohan Lal alongwith the petitioner and the respondent Nos. 16 to 18; that petitioner and respondent Nos. 16 to 18 filed objections regarding their substitution. Learned Munsif allowed the substitution application substituting the heirs of Mohan Lal but rejected the substitution of the petitioner, respondent No. 16 to 18 and Krishna Kumar (now deceased). It appears that some revision petition was filed challenging the order of the Munsif before the District Judge. Learned District Judge passed an order dated 28297 by way of setting aside the order of the lower court and asked the decreeholders to take steps to bring on record the legal representatives of the deceased by way of amendment in the revision within 10 days. This order has been attacked in the writ petition.

It is submitted by the learned counsel for the petitioner that the impugned order of the learned District Judge is illegal as he could not give the direction suo moto to the decreeholder to bring on record the legal representatives of the deceased Krishna Kumar. It is further submitted that the substitution application has been filed after 7 years. He further submitted that the finding of the District Judge that doctrine of abatement does not apply to revision proceedings arising out of the order passed inexecution proceeding is erroneous and contrary to law. He has further submitted that the decree of eviction is indivisible and if it abates against one judgmentdebtor then in that even it abates as a whole.

I have considered the submissions made by the learned counsel for the petitioner and I am of the view that the learned District Judge has arrived the conclusion correctly and there is no jurisdictional error. It may be mentioned that Order XXII, Rule 12 of C.P.C. says that nothing under Rules 3, 4 & 8 shall apply to proceedings in execution of a decree or order. There is difference between the execution proceeding and decree. The execution proceeding is a procedural matter to get it implement the rights adjudicated in a decree and merely the parties died does not mean that the rights adjudicated and vested cannot be persuaded by the legal representatives. The submission of the learned counsel for the petitioner is untenable.

I also do not agree that the revision proceeding arising out of the execution has also abated. If the proceeding for execution of decree would not abate then how it can be imagined that the revision arising out of execution proceeding would also automatically abate. The court can suo moto take cognizance of matter in revision petition. This argument of the learned counsel for the petitioner is also too fragile to accept and is rejected forthwith. I do not find jurisdictional error in the order of the learned District Judge or abuse of process of law or is without jurisdiction and dismiss the writ petition at the preliminary stage.