Patna High Court
Shashi Shekhar Ojha vs Pushpa Devi on 9 April, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1411 of 2024
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1. Shashi Shekhar Ojha S/o Late Dadan Ojha R/o Village- Barka Singhanpura,
P.S.- Simri, District- Buxar.
2. Poonam Devi W/o Late Om Prakash Jha R/o- Village- Barka Singhanpura,
P.S.- Simri, District- Buxar.
3. Most. Pushpa Devi W/o Late Sri Ram Ojha R/o Village- Barka Singhanpura,
P.S.- Simari, District- Buxar.
4. Manoj Ojha mother Pushpa Devi, Child of Late Sri Ram Ojha R/o Village-
Barka Singhanpura, P.S.- Simari, District- Buxar.
5. Markandey Ojha S/o Late Dadan Ji Ojha R/o Village- Barka Singhanpura,
P.S.- Simari, District- Buxar.
6. Dhanpal Ojha Son of Late Parasuram Ojha R/o Village- Barka Singhanpura,
P.S.- Simri, District- Buxar.
7. Mintu Pandey W/o Madan Pandey R/o- Village and P.S.- Gonaur, District
Gazipur, U.P.
8. Renu Pandey W/o Kaghna Kant Pandey R/o Village and P.S.- Gonaur,
District- Gazipur, U.P.
9. Sunita Pandey W/o Sunil Pandey R/o Village and P.O.- Kharangazhar, P.S.
Telco, District- Jamshedpur.
10. Sanoj Ojha S/o Late Sri Ram Ojha R/o Village- Barka Singhanpura, P.S.-
Simari, District- Buxar.
11. Savitri Devi W/o Dindayal Ojha R/o Village and P.O.- Barka, Singhanpura,
P.S.- Simri, Buxar.
12. Puja Devi D/o Sri Ram Ojha R/o Village and P.S.- Simari, District- Buxar.
13. Sanjay Kumar Ojha @ Sanjya Ojha S/o Din Dayal Ojha R/o Village- Barka
Singhanpura.
14. Vijay Kumar Ojha S/o Dindayal Ojha R/o Village- Barka Singhanpura, P.S.-
Simri, District- Buxar.
15. Jangali Ojha S/o Late Baban Ojha R/o Village Barka Singhanpura, and P.S.-
Simari, District- Buxar.
16. Bimla Devi W/o Late Rajgrihi Ojha R/o Village Barka Singhanpura and
P.S.- Simari, District- Buxar.
17. Abhishek Ojha @ Tuntun Ojha S/o Late Rajgrihi Ojha R/o- Village Barka
Singhanpura, P.S.- Simari, District- Buxar.
18. Babul Kumari, D/o Late Rajgrihi Ojha R/o Chotka Singhanpura, P.S.-
Simari, Distt.- Buxar.
19. Nepal Ojha S/o Late Parasuram Ojha R/o Village Barka Singhanpura and
P.S.- Simari, District- Buxar.
20. Chandradeep Ojha S/o Late Baban Ojha R/o Village- Barka Singhanpura,
P.S.- Simari, District Buxar.
21. Siyaram Ojha S/o Late Nand Kishore Ojha R/o Village- Barka Singhanpura,
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
2/20
P.S.- Simri, District- Buxar.
22. Gopal Jee Ojha, Son of Late Parasuram Ojha R/o Village- Barka
Singhanpura, P.S.- Simri, District- Buxar.
... ... Petitioners
Versus
1. Pushpa Devi widow of Late Anil Kumar Ojha Resident of Chotka
Singhanpura, Rani Singhanpura, P.S. Singhanpura, District- Buxar 802120.
2. Swarangi Dubey Daughter of Late Anil Kumar Ojha and Wife of Sri Rajeev
Dubey Resident of 155 Vandana Enclave Khora Colony, Gaziabad, District
Gaziabad (U.P.) 201001.
3. Anish Ojha Son of Late Anil Kumar Ojha Resident of 388/7 Upen Banerjee
Road, Bahala Flying Club Behala, Parnasree Pally, Kolkata (W.B) 700060.
4. Chandan Kumar Ojha Son of Late Anil Kumar Ojha Resident of Chotka
Singhanpura, Rani Singhanpura, P.S. Singhanpura, District Buxar 802120.
5. Milthlesh Ojha S/o Late Shiv Mandir Ojha R/o Chotka Sinhganpura, P.S.-
Simari, District- Buxar.
6. Nand Kumari Devi W/o Late Kedar Ojha R/o Chotka Sinhganpura, P.S.-
Simari, District- Buxar.
7. Harendra Ojha (Major) Child of Late Kedar Ojha R/o Chotka Sinhganpura,
P.S.- Simari, District- Buxar.
8. Nagendra Ojha (Major) Child of Late Kedar Ojha R/o Chotka Sinhganpura,
P.S.- Simari, District- Buxar.
9. Nirmala Devi (Major) Child of Late Kedar Ojha R/o Chotka Sinhganpura,
P.S.- Simari, District- Buxar.
10. Meena Devi (Major) Child of Late Kedar Ojha R/o Chotka Sinhganpura,
P.S.- Simari, District- Buxar.
11. Kamlawati Devi W/o Shiv Kumar Dubey, D/o Shiv Mandir Ojha R/o- Kul
Man Fur, P.S.- Murar, District- Buxar.
12. Madhu Devi W/o Anup Choubey, D/o Late Shiv Mandir Ojha R/o Jafali
Ganj, Baliya, P.S. Baliya (Town), District- Baliya.
13. Most. Sabitri Devi W/o Late Mithlesh Ojha R/o Barka, Singhanpura, P.S.-
Simri, District- Buxar.
14. Manoj Kumar Ojha S/o Late Mithlesh Ojha R/o Barka, Singhanpura, P.S.-
Simri, District- Buxar.
15. Sashi Kant Ojha S/o Late Mithlesh Ojha R/o Barka, Singhanpura, P.S.-
Simri, District- Buxar.
16. Amrendar Kumar Ojha S/o Late Mithlesh Ojha R/o Barka, Singhanpura,
P.S.- Simri, District- Buxar.
17. Saroj Devi D/o Late Mithlesh Ojha, W/o Arun Kumar Upadhaya R/o-
Village- Narahi, P.S.- Narahi, District- Baliya, State- U.P.
18. Most. Sunita W/o Late Venkatesh Ojha R/o Barka Singhanpura, P.S.- Simari,
District- Buxar.
19. Saltoo Ojha S/o Late Venktesh Ojha R/o Barka Singhanpura, P.S.- Simari,
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
3/20
District- Buxar.
20. Shiv Nandan Ojha S/o Late Ram Byarh Ojha R/o Barka Sinhganpura, P.S.-
Simari, District- Buxar.
21. Gita Devi W/o Late Harinandan Ojha R/o Barka Sinhganpura, P.S.- Simari,
District- Buxar.
22. Ram Bihari Ojha S/o Late Jang Ojha R/o Barka Sinhganpura, P.S.- Simari,
District- Buxar.
23. Surya Narayan Ojha S/o Late Jang Ojha R/o Barka Sinhganpura, P.S.-
Simari, District- Buxar.
24. Hare Narayan Ojha S/o Late Jang Ojha R/o Barka Sinhganpura, P.S.- Simari,
District- Buxar.
25. Vidhya Sagar Ojha (Minor) S/o Late Awadh Bihari Ojha R/o Barka
Sinhganpura, P.S.- Simari, District- Buxar.
26. Hareram Ojha (Minor) S/o Lal Mohar Ojha R/o Barka Sinhganpura, P.S.-
Simari, District- Buxar.
27. Brij Bihari Ojha S/o Dhela Ojha R/o Barka Sinhganpura, P.S.- Simari,
District- Buxar.
28. Munna Ojha S/o- Dhela Ojha R/o Barka Sinhganpura, P.S.- Simari, District-
Buxar.
29. Swaminath Mishra S/o Khedan Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
30. Kashinath Mishra S/o Khedan Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
31. Hareram Mishra S/o Swaminath Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
32. Jairam Mishra S/o- Swaminath Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
33. Bharath Mishra S/o- Swaminath Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
34. Baccha Mishra S/o- Swaminath Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
35. Laxuman Mishra S/o Kashinath Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
36. Basistha Mishra S/o Ram Ekbal Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
37. Gajadhar Mishra S/o Kanhjee Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
38. Rajgrihi Mishra S/o Jagannath Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
39. Ramgrihi Mishra S/o Jagannath Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
40. Narad Mishra S/o Phagu Mishra R/o Village- Parsaaunda, P.S.- Shahpur,
District- Bhojpur.
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
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41. Sri Bhagwan Mishra S/o Ram Badan Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
42. Bachcha name not known S/o Ram Badan Mishra R/o Village- Parsaaunda,
P.S.- Shahpur, District- Bhojpur.
43. Devendra Mishra S/o Surya Badan Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
44. Bachcha name not known Minor S/o Surya Badan Mishra R/o Village-
Parsaaunda, P.S.- Shahpur, District- Bhojpur.
45. Ramjee Mishra S/o Damari Mishra R/o Village- Parsaaunda, P.S.- Shahpur,
District- Bhojpur.
46. Laxman Ojha S/o Damari Mishra R/o Village- Parsaaunda, P.S.- Shahpur,
District- Bhojpur.
47. Shivjee Mishra S/o Heera Mishra R/o Village- Parsaaunda, P.S.- Shahpur,
District- Bhojpur.
48. Harishikesh Mishra S/o Heera Mishra R/o Village- Parsaaunda, P.S.-
Shahpur, District- Bhojpur.
49. Shiv Prasad Mishra S/o Brija Mishra R/o Village- Parsaaunda, P.S.- Shahpur,
District- Bhojpur.
... ... Respondents
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Appearance :
For the Petitioner/s : Mr. D. K. Sinha, Sr. Advocate
Mr. Alexandar Ashok, Advocate
For the Respondent/s : Mr. Jitendra Kishore Verma, Advocate
Mr. Anjani Kumar, Advocate
Mr. Ravi Raj, Advocate
Mr. Achyut Kumar, Advocate
Ms. Shweta Raj, Advocate
Mr. Shreyash Goyal, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 09-04-2025
The present petition has been filed by the petitioners
challenging the order dated 02.09.2024 passed by the learned
Sub Judge-II, Dumraon, Buxar in Execution Case No. 05 of
2008, whereby and whereunder the learned Sub Judge has
ordered for deletion of names of deceased-decree holder as well
as judgment debtors and bringing on record their legal heirs and
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
5/20
also allowed correction of some typographical errors.
02. Briefly stated, the facts of the case are that one
title suit bearing Title Suit No. 53 of 1968 was instituted by the
plaintiffs/respondents seeking a decree of redemption of a
mortgage bond dated 03.07.1996 executed by one Mahendra
Missir in favour of Nandlal Ojha and others upon receipt of a
sum of Rs. 2,500/-. The plaintiffs further sought a direction
against the defendants to redeem the mortgage and to deliver
possession of the mortgaged property, failing which a final
decree was sought to be prepared and delivery of possession to
be effected in favour of the plaintiffs. Plaintiffs claimed that the
mortgaged property was partitioned between the defendants 3 rd
and 4th parties. Subsequently, the defendants 3rd and 4th parties
sold 12 Anna share of the property to the plaintiffs through three
sale deeds dated 24.11.1964. The plaintiffs further submitted
that they tendered the mortgage amount, but the defendants
refused to accept the same, giving rise to suit filed by the
plaintiffs. The defendants in their written statement contended
that in 1926, Mahendra Missir executed two mortgage deeds for
a total sum of Rs. 5,000/-, one of which pertained to 5.88 acres
for Rs. 2,500/-. It was agreed at the time of mortgage that both
deeds would be redeemed simultaneously. The defendants 4 th
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
6/20
party continued to cultivate the entire 11.26 acres of land and
used to settle account with the defendants-2nd party. The
partition story of the plaintiffs was denied by the defendants as
false. The defendants further asserted that Ramshakal Mishra
and others never came into possession of the property as alleged
by the plaintiffs and the vendors of the plaintiffs had no legal
right to sell Mahendra Missir's property. It was also contended
that Mahendra Missir had executed a registered Will on
19.10.1940
, bequeathing all his properties described in
Schedules-I, II and III of the plaint to defendant-Baleshwar
Mishra. Upon Mahendra Missir's demise, Baleshwar Mishra
inherited his property by virtue of this will, which was duly
probated by the court on 29.05.1965. Thereafter, Baleshwar
Mishra executed an agreement to sell for entire 11.26 acres to
the defendants under a registered agreement to sale. The
defendants further contended that the right to redeem the
mortgage was lost due to the statutory limitation period, as no
steps were taken by the plaintiffs to redeem the mortgage within
the prescribed time. They contended that the sale deeds relied
upon by the plaintiffs were illegal, forged, without consideration
and were executed by individuals without any valid title and
thus were void in the eyes of law. Therefore, the plaintiffs had
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
no equity of redemption, nor was there any relationship of
mortgagor and mortgagee. The said Title Suit No. 53 of 1968
was dismissed vide judgment and decree dated 21.09.1987.
Aggrieved by the dismissal, the plaintiffs/respondents filed Title
Appeal No. 147 of 1987 before the learned District Judge,
Buxar, challenging the judgment and decree dated 21.09.1987
passed in Title Suit No. 53 of 1968. The Title Appeal No. 147 of
1987 was allowed by a judgment dated 25.08.2000, wherein the
trial court's judgment and decree were reversed. Against the said
appellate judgment, the defendants preferred Second Appeal No.
400 of 2000, which is still pending. It further transpires that
during the pendency of Second Appeal No. 400 of 2000, the
respondents attempted to negotiate the sale of the suit land and
I.A. No. 2134 of 2001 under Order 39 Rules 1 and 2 of the Code
of Civil Procedure, 1908 (for short 'the Code') was filed and
this Court directed for maintenance of status quo. During the
pendency of the said Second Appeal, the plaintiffs-respondents
moved an application for the preparation of a final decree,
which was allowed by the trial court vide order dated
25.07.2008 passed in Title Suit No. 53 of 1968 and a final
decree was prepared. Aggrieved by the preparation of the final
decree, the defendant-petitioners filed Title Appeal No. 44 of
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
2008 before the learned appellate court. However, the said
appeal was dismissed for default and an application for
restoration of the same is pending. In the meantime, the
plaintiffs/respondents instituted Execution Case No. 05 of 2008
for the execution of the judgment and decree dated 25.08.2000
before the court of the learned Sub-Judge-II, Dumraon, Buxar.
The final decree in Suit No. 53 of 1968 was passed on
12.08.2008, in which names of multiple individuals were
included, some of whom were listed as minors. The decree
holders through an application dated 30.05.2024 sought to
amend the execution list by substituting certain names, however
the said application was rejected vide order dated 01.08.2024,
passed by learned Sub Judge II, Dumraon, Buxar. Thereafter,
the decree holder, through an application dated 14.08.2024,
sought to amend the execution list by substituting certain names,
including minors with other individuals. This application was
allowed vide order dated 02.09.2024 and the same is under
challenge before this Court.
03. Learned senior counsel appearing on behalf of the
petitioners submitted that the decree holders/plaintiffs
/respondents earlier filed an application dated 30.05.2024 under
Order 22 Rule-4 read with Section 151 of the Code for deletion
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
of names of some judgment debtors, which was dismissed by
the learned executing court vide order dated 01.08.2024. No
liberty was sought or granted for filing of another application.
Learned senior counsel further submitted that impugned order is
unjust as it goes beyond the scope of the decree passed by the
court and violates settled legal principles governing the
execution of decrees. The decree had attained finality and any
alteration in the decree at this stage would amount to a
modification of the judgment that is binding and executable.
The learned executing court permitted the substitution of heirs
for certain judgment debtors, even though the legal heirs had
either already been represented in the original suit or had been
deliberately excluded and the learned executing court failed to
appreciate that such amendments at the stage of execution are
impermissible under the law. Learned senior counsel further
submitted that the learned Sub Judge, in passing the impugned
order, has exceeded the jurisdiction of an executing court and
allowed the amendment altering the decree itself. Any
modification in the decree cannot be allowed, but the learned
executing court allowed the same and hence, the impugned
order is bad, inoperative and not sustainable in the eyes of law.
04. In support of his submission, learned senior
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
counsel referred to a decision of Hon'ble Supreme Court in the
case of T. Gnanavel Vs. T.S. Kanagraj & Anr., reported in AIR
2009 SC 2367 on the point that the decree passed by the trial
court was a nullity in the eye of law as the defendant died
during the pendency of the suit and no exemption was sought at
the instance of the plaintiff to bring on record the heirs/legal
representatives of the defendant before the judgment was
pronounced. Learned senior counsel further submitted that the
learned executing court did not take into consideration the
aspect of limitation and abatement taking place. Thus, the
learned senior counsel submitted that the impugned order is not
sustainable and the same needs to be set aside.
05. Learned counsel appearing on behalf of
plaintiffs/respondents, at the outset, submitted that there could
be no application of the laws of limitation in execution cases
and referred to the decision of Hon'ble Supreme Court in the
case of V. Uthirapathi Vs. Ashrab Ali & Ors., reported in
(1998) 3 SCC 148, wherein the Hon'ble Supreme Court held
that if death of decree holder or judgment debtor takes place
during pendency of the execution proceedings, no time limit is
prescribed for bringing on record the legal representative of the
deceased and they could be brought on record at any time and
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
the execution proceeding would not abate but will remain
pending. Learned counsel further submitted that Order 22 Rule-
12 of the Code makes it amply clear that Rules 3, 4 and 8 of
Order 22 of the Code shall not apply to proceedings in
execution of the decree or order. Thus, the learned counsel
submitted that even in the case of death or absence of the decree
holder, the execution proceedings cannot be dismissed in
default. Learned counsel further submitted that the petitioners
have been trying to linger on the matter as the petitioners would
not be affected in any manner, since the persons being sought to
be substituted belong to the family of the mortgagors and are
not the family members of the mortgagee. Recounting the
chronology of events, learned counsel further submitted that
petitioners represent the defendants 1st set/judgment debtors. By
the impugned order dated 02.09.2024, the learned executing has
ordered for deletion and/or substitution of some of the deceased
decree holders and judgment debtors and substitution of their
legal heirs as also for correcting some typographical errors and
minor's status of some of the parties who have attained majority
wherever required for effective adjudication and disposal of the
execution case. The learned counsel stressed that in so far as
main contesting judgment debtors/defendant 1st set are
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
concerned, they are not going to be affected in any manner by
the impugned order and they have got no locus standi to
approach this Court in the present civil miscellaneous petition as
they are not affected parties. Learned counsel further submitted
that the execution case arises out of a redemption suit filed for
redeeming two mortgage deeds executed by one Mahendra
Missir in favour of Nandlal Ojha and others vide mortgage
deeds dated 03.07.1926. The plaintiffs of the suit claimed to
have purchased major part of the mortgagor's interest and filed
the present suit for redemption wherein there were five sets of
defendants out of which defendants 1st and 2nd sets represented
mortgagees' interest whereas defendants 3rd, 4th and 5th sets
represented original mortgagor's interest and the suit was
numbered as Title Suit No. 53 of 1968. The defendants 1st set
contested the suit and the said title suit was dismissed on
21.09.1987. The Title Appeal filed by the plaintiffs/respondents
bearing No. 147 of 1987 against the judgment and decree of
Title Suit No. 53 of 1968 was allowed on 25.08.2000 and
preliminary decree was passed. Aggrieved by the said judgment
and decree, the defendants 1st set and others filed Second Appeal
No. 400 of 2000, which is still pending adjudication before this
Court. In the Title Suit No. 53 of 1968, final decree was
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
prepared on 12.08.2008 and for execution of the same,
Execution Case No. 05 of 2008 has been filed and is still
pending. In the said Second Appeal, an application for
injunction under Order 39, Rule 1 & 2 of the Code was filed and
an order for maintaining status quo over the suit property has
been passed and the proceeding before the learned subordinate
court was not stayed and this fact was subsequently made clear
by this Court in second appeal itself. So, the orders passed in
second appeal do not restrain the executing court from
proceeding and there is no order of stay of execution proceeding
by this Court. The present petitioners had earlier filed a petition
under Section 47 of the Code on 21.05.2011 objecting to the
executability of the decree and praying for stay of the further
proceeding of execution case. But the said application was
rejected vide order dated 03.09.2016 and the said order became
final as it remained unchallenged. Learned counsel further
submitted that further development took place in Title Appeal
No. 44 of 2008 and in the second appeal whereby the Title
Appeal No. 44 of 2008 was dismissed in default and the
application filed by the petitioners seeking stay of the execution
proceeding has been dismissed as withdrawn.
06. Learned counsel for the plaintiffs/respondents
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
further submitted that prior to filing of application dated
14.08.2024, the decree holders/plaintiffs/respondents filed a
petition on 30.05.2024 for deleting the names of judgment
debtor nos. 33, 34, 44, 55 and 64, but the learned executing
court rejected the petition vide order dated 01.08.2024 saying
that the names cannot be deleted as no substitution petition has
been filed in this respect and thereupon, the decree holders filed
petition dated 14.08.2024, seeking substitution etc. Upon which
the impugned order dated 02.09.2024 has been passed and there
is no question of res judicata being applicable in the present
facts and circumstances. Learned counsel reiterated that there is
no substitution in so far as main contesting judgment
debtors/defendants 1st set are concerned and even in respect of
defendants 2nd set as it relates to judgment debtor nos. 33, 34,
44, 55 and 64, who are related to defendants 3 rd, 4th and 5th sets
who have not contested the suit and as such, the
petitioners/defendants 1st set or even the other mortgagee
judgment debtors/defendants 2nd set are not going to be affected
in any manner. Learned counsel further submitted that the
petitioners earlier approached this Court by filing Civil Misc.
Jurisdiction No. 840 of 2023, which was dismissed as
withdrawn. But, while allowing the withdrawal, this Court
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
directed the learned Sub Judge-III, Dumraon, Buxar to dispose
of the Execution Case No. 05 of 2008 expeditiously and
preferably within a period of six months in the light of decision
of Hon'ble Supreme Court in the case of Rahul S Shah Vs.
Jinendra Kumar Gandhi & Ors., reported in (2021) 6 SCC
418. But, the judgment debtors/petitioners have left no stone
unturned in ensuring that delivery of possession is not effected,
inasmuch as, they have filed a number of petitions to obstruct
the delivery of possession and even created hindrance in
delivery of possession by assembling a number of
persons/musclemen. Learned counsel further submitted that if
the petitioners are allowed to play with the process of the Court,
the respondents/decree holders would never get the fruit of the
decree, which arises of a suit of the year 1968 seeking
redemption of mortgage of the year 1926. Thus, the learned
counsel submitted that there is no infirmity in the impugned
order and the same does not need any interference.
07. I have given by thoughtful consideration to the
rival submission of the parties and perused the record.
08. So far as contention of learned senior counsel
about the decree being nullity on account of death of defendant
during the pendency of the suit is concerned, the petitioners
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
have earlier objected to the executability of decree and the
prayer was rejected vide order dated 03.09.2016 and the said
order attained finality. Therefore, the petitioners are not allowed
to rake up the issue of executability of decree at this stage.
However, the thrust of argument of learned senior
counsel for the petitioners is mainly about abatement taking
place and the application not being filed during the period of
limitation prescribed, if some of the decree holders and
judgment debtors have not been brought on record within
stipulated time. This argument is completely devoid of merit as
it is against the specific provision of law. Order XXII Rule-12 of
the Code is the relevant provision, which reads as under:
"12. Application of Order to
proceedings.--Nothing in rules 3, 4 and 8
shall apply to proceedings in execution of a
decree or order."
09. The aforesaid provision makes it amply clear that
there is no period of limitation prescribed and no abatement of
proceeding as Order 22 Rule 3 and 4 do not apply to the
execution proceedings. The Hon'ble Supreme Court in the case
of Varadarajan Vs. Kanakvalli & Ors., reported in (2020) 11
SCC 598 made the position clear and Paragraph-8 of the said
decision is extracted for reference:
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
"8. We may state that Order 22 of the
Code is applicable to the pending
proceedings in a suit. But the conflicting
claims of legal representatives can be
decided in execution proceedings in view of
the principles of Rule 5 of Order 22. This
Court in a judgment in V. Uthirapathi v.
Ashrab Ali [V. Uthirapathi v. Ashrab Ali,
(1998) 3 SCC 148] held that the normal
principle arising in a suit--before the decree
is passed--that the legal representatives are
to be brought on record within a particular
period is not applicable to cases of death of
the decree-holder or the judgment-debtor in
execution proceedings. This Court held as
under: (SCC p. 153, paras 11-14)
"11. Order 22 Rule 12 of the Code of
Civil Procedure reads as follows:
'12. Application of order to
proceedings.--Nothing in Rules 3, 4 and 8
shall apply to proceedings in execution of a
decree or order.'
12. In other words, the normal principle
arising in a suit -- before the decree is
passed -- that the legal representatives are to
be brought on record within a particular
period and if not, the suit could abate, -- is
not applicable to cases of death of the
decree-holder or the judgment-debtor in
execution proceedings.
13. In Venkatachalam Chetti v. Ramaswamy
Servai [Venkatachalam Chetti v. Ramaswamy
Servai, 1931 SCC OnLine Mad 149 : ILR
(1932) 55 Mad 352 : AIR 1932 Mad 73] a
Full Bench of the Madras High Court has
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
held that this rule enacts that the penalty of
abatement shall not attach to execution
proceedings. Mulla's Commentary on CPC
[(Vol. 3) p. 2085 (15th Edn., 1997)] refers to
a large number of judgments of the High
Courts and says:
'Rule 12 engrafts an exemption which
provides that where a party to an execution
proceeding dies during its pendency,
provisions as to abatement do not apply. The
Rule is, therefore, for the benefit of the
decree-holder, for his heirs need not take
steps for substitution under Rule 2 but may
apply immediately or at any time while the
proceeding is pending, to carry on the
proceeding or they may file a fresh execution
application.'
14. In our opinion, the above statement of
law in Mulla's Commentary on CPC,
correctly represents the legal position
relating to the procedure to be adopted by the
parties in execution proceedings and as to
the powers of the civil court."
10. Therefore, submission on this point would not cut
much ice. If there could be no application of Order XXII Rules
3, 4 and 8 of the Code, an application filed under Order XXII
Rule 4 would not act as res judicata for filing subsequent
application for substitution of deceased judgment debtors.
Moreover, the earlier application was filed only for deleting the
names of respondent nos. 33, 34, 44, 55 and 64 whereas the
subsequent application has been filed for substitution of the
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
judgment debtors.
11. Thus, in view of the specific provision of law,
there would be no abatement of the execution proceeding and as
no limitation has been prescribed for substitution of the
judgment debtors, they can be brought on record at any stage of
proceeding and if any time frame is provided by the learned
executing court, within that time frame. On the basis of the
principles adopted herein before, the impugned order could not
be faulted. Further, the persons who were sought to be
substituted at the stage are not having any concern either with
the main contesting judgment debtors/defendants 1st set or
defendants 2nd set, I fail to understand how the judgment
debtors/defendants 1st set or defendants 2nd set are going to be
affected. If there is no illegality in the impugned order, the
petitioners being contesting judgment debtors, who are not
affected by the substitution order could not maintain a challenge
to the impugned order.
12. In the light of discussion made here-in-before, I do
not find any error of jurisdiction by the learned executing court
or any infirmity in the impugned order and hence, the impugned
order dated 02.09.2024 passed by the learned Sub Judge-II,
Dumraon, Buxar in Execution Case No. 05 of 2008 is hereby
Patna High Court C.Misc. No.1411 of 2024 dt.09-04-2025
affirmed.
13. Accordingly, the present petition stands dismissed.
14. Pending applications, if any, stands disposed of.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR AFR
CAV DATE 29.01.2025
Uploading Date 09.04.2025
Transmission Date NA
