Padam Chand Vaish vs Madan Gopal Har Gopal And Ors.
2006 Latest Caselaw 615 Del

JUDGMENT

R.S. Sodhi, J.

1. This petition seeks to challenge the order of the Additional Rent Control Tribunal dated 28.03.2005 whereby the learned Tribunal has made it incumbent upon the petitioner to serve notice on the legal representatives of Madan Gopal, who according to the Tribunal was one of the partners in the concern M/s Madan Gopal Har Gopal.

2. It is contended by counsel for the petitioner that a decree for eviction was passed against M/s Madan Gopal Har Gopal which was taken up in appeal and the Appellate Court held that M/s Madan Gopal Har Gopal had become proprietorship concern and that the legal representatives of Har Gopal having not been brought on record the appeal abates. This judgment has been upheld by the Supreme Court. Counsel, therefore, submits that in execution the parties that are required to be served would be the legal representatives of Har Gopal and not of those persons who do not constitute any part of M/s Madan Gopal Har Gopal.

3. Counsel for the respondent contends that a decree has been passed against M/s Madan Gopal Har Gopal as a partnership concern, therefore, the Executing Court is bound to issue notices to all who have an interest in the commercial property and the firm M/s Madan Gopal Har Gopal.

4. I have heard counsel for the parties and with their assistance have gone through the order under challenge as also the order of the High Court. It appears to me that the matter proceeded before the trial court on the basis that M/s Madan Gopal Har Gopal was a proprietorship concern since the contesting party appeared as a proprietor and no one challenged this position. It was on this basis that the matter was taken up in appeal. In the appeal the legal representatives had not been brought on record on the death of Har Gopal.

5. The Appellate Court found that legal representatives of Har Gopal having not been brought on record the appeal abated, which also found favor with the Supreme Court. The Executing Court, therefore, is bound by the decree. The court cannot insist on parties to be added or served other than legal representatives of Har Gopal.

6. In this view of the matter, the direction of the Additional Rent Control Tribunal are set aside. CIVIL MISCELLANEOUS MAIN 875/2005 is allowed and disposed of. This, however, is without prejudice to any other person who may be able to show any interest, right or title in M/s Madan Gopal Har Gopal at which the court will then proceed in accordance with law.