Rajasthan High Court
Jhunjhunu Kendriya Sahakari Bank ... vs Abhishek Tulsyan Son Of Late ... on 4 August, 2022
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 8050/2022
Jhunjhunu Kendriya Sahakari Bank Limited, Shakha Gandhi
Chauka Jhunjhunu, Tehsil And District Jhunjhunu (Rajasthan),
Through Shakha Prabandhak Shivkumar Jangid Son Of
Gangadhar Jangid.
----Petitioner
Versus
Abhishek Tulsyan Son Of Late Santosh Kumar Tulsyan, Resident
Of Chuna Chauka Jhunjhunu, Tehsil And District Jhunjhunu, At
Present Aabad-16 Exchange Palace, Kolkata (West Bengal),
Through Power Of Attorney Holder Arjun Verma Son Of Late
Raghuveer Prasad Verma, Resident Of Chuna Chauka Jhunjhunu
Tehsil And District Jhunjhunu (Rajasthan).
----Respondent
For Petitioner(s) : Mr. J.K. Singhi, Sr. Adv. assisted by
Mr. Tarun Kumar Verma
For Respondent(s) : Mr. R.K. Agarwal, Sr. Adv. with
Mr. Mamoon Khalid
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
04/08/2022
This writ petition under Article 227 of the Constitution of
India has been filed by the petitioner/judgment debtor assailing
the legality and validity of the order dated 01.04.2022 whereby,
an application filed by the respondent for his substitution as legal
representative of deceased Santosh Kumar Tulsyan, decree-holder,
has been allowed.
The facts in brief are that the eviction application filed by late
Santosh Kumar Tulsyan against the petitioner seeking eviction
from the subject premises was allowed by the learned Rent
Tribunal, Jhunjhunu vide its judgment dated 06.03.2019 which
was upheld by the learned Appellate Rent Tribunal, Jhunjhunu vide
its judgment dated 05.12.2020. During pendency of the execution
(2 of 4) [CW-8050/2022]
petition, the decree-holder Santosh Kumar Tulsyan expired on
22.05.2021 whereupon, the respondent filed an application stating
therein that he was the only son of the deceased. It was averred
that the eviction petition was filed by his father as Karta of Hindu
Undivided Family (for brevity "HUF") and after his death, now he is
Karta of the HUF. The application has been allowed by the learned
Executing Court vide its judgment dated 01.04.2022, impugned
herein.
Assailing the order impugned dated 01.04.2022, learned
Senior Counsel for the petitioner submitted that the eviction
application was filed by late Santosh Kumar Tulsyan in his
individual capacity and not as Karta of HUF. He submitted that in
any case, neither any evidence to show that after death of late
Santosh Kumar Tulsyan, the respondent became Karta of the HUF
nor, any HUF deed was submitted in support of the application
filed by the respondent. Learned Senior Counsel submitted that
indisputably, the respondent is not the only legal representative of
the deceased decree-holder and in absence of either impleadment
of all the legal representatives as party or succession certificate in
favour of the respondent, the execution proceeding could not be
continued on behest of the respondent only. Learned Senior
counsel further submitted that the application filed by the
respondent is bereft of any averment that it has been filed on
behest of his Power of Attorney holder and hence, it was not
maintainable. He, in support of his submission, relies upon a
Division Bench Judgment of this Court in case of Ganeshmal
versus Smt. Anand Kanwar & Ors.: AIR 1968 Raj 273.
Per contra, learned Senior Counsel for the respondent
supporting the findings recorded by the learned Executing Court,
(3 of 4) [CW-8050/2022]
submitted that it was specific case of the petitioner itself in its
reply to the eviction application that it has taken the subject
premises on lease from the HUF firm and in view of undisputed
position that the respondent is only surviving male member in the
family of deceased Santosh Kumar Tulsyan, it does not lie in the
mouth of the petitioner to contend that he is not Karta of the HUF.
He submitted that even otherwise also, the petitioner, a tenant, is
not entitled to raise objections as to entitlement of the respondent
in prosecuting the execution in absence of any objection by the
other legal representatives of deceased decree-holder. He,
therefore, prayed for dismissal of the writ petition.
Heard. Considered.
From the material on record, it is apparent that the
respondent is the only son of the decree-holder and the only male
member surviving in the family of deceased Santosh Kumar
Tulsyan inasmuch as it is admitted by the petitioner before the
learned Executing Court that the decree-holder late Santosh
Kumar Tulsyan is survived by his wife, his daughter and the
respondent. The reply filed by the petitioner to the eviction
application, which was produced by the learned Senior Counsel for
the respondent for perusal of this Court, reveals that it was
specific case of the petitioner that it has taken the subject
property on rent from the HUF firm. In these circumstances, in the
considered opinion of this Court, the learned Executing Court did
not err in permitting the respondent to be substituted in place of
his late father.
Contention of the learned Senior Counsel for the petitioner
as to non-maintainability of the application filed by the respondent
it being bereft of any averment of having been filed on behest of
(4 of 4) [CW-8050/2022]
his Power of Attorney holder, does not merit acceptance inasmuch
as, it has specifically been mentioned therein that it was filed by
the respondent through his Power of Attorney holder Shri Arjun
Verma.
The judgment relied upon by learned Senior Counsel for the
petitioner is of little assistance to him inasmuch as in an execution
petition arising out of a money decree, interpreting the provisions
of Section 214 of the Indian Succession Act, 1925 (hereinafter
referred to as "the Act of 1925"), the Division Bench of this Court
in case of Ganeshmal (supra) held that for payment of debt
under the money decree, the applicant claiming to be legal heir of
deceased decree-holder must have succession certificate;
whereas, in the present case, the decree is for eviction in which
the provisions of Section 214 of the Act of 1925 do not apply.
This Court is not satisfied that the order dated 01.04.2022
passed by the learned Executing Court in exercise of its judicious
discretion based on cogent material on record suffers from any
such perversity or patent jurisdictional error so as to warrant
interference of this Court under its limited supervisory jurisdiction
vide Article 227 of the Constitution of India.
Resultantly, this writ petition is dismissed being devoid of
merit.
However, looking to long pendency of the execution petition,
the learned Executing Court is requested to expedite its hearing
and disposal.
(MAHENDAR KUMAR GOYAL),J
Manish/76
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