Mrs. Vimalvasantkarwande vs Mohamemdgbouse Khan
2021 Latest Caselaw 1592 Tel

     THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM

              CIVIL REVISION PETITION No. 591 OF 2020

O R D E R:

Against the order dated 09.01.2020 passed by the learned

XI Additional Chief Judge, City Civil Courts, Hyderabad, in

E.A.No.50 of 2019 in E.P.No.1473 of 2019, this Revision is filed.

The brief facts, which are relevant for the purpose of disposal

of this Revision, are that the petitioners filed O.S.No.882 of 2013 for

declaration and recovery of possession of the suit schedule

property. In the said suit, the petitioners-plaintiffs made submissions

on 22.02.2019 and the respondents-defendants concluded their

arguments on 08.03.2019, on which date, the suit was reserved for

judgment and on 10.04.2019 judgment was delivered. However, in

the interregnum, on 26.02.2019, plaintiff No.3 died in U.S.A., which

fact was not known to the parties to the proceedings. E.P.No.1473

of 2019 came to be filed on 15.07.2019, in which, the legal

representatives of plaintiff No.3 were also shown as decree holders.

In the said E.P., E.A.No.50 of 2019 was filed by judgment debtor

No.3 seeking stay of all further proceedings in E.P. mainly

contending that the legal representatives of plaintiff No.3, who died

on 26.02.2019, were not brought on record, as such, the judgment

and decree passed on 10.04.2019 would be a nullity. The trial Court

by the impugned order, allowed the E.A.

Learned counsel for the petitioners submits that the E.P.

proceedings would not be held to be nullity merely on account of one

CKR,J C.R.P.No.591 of 2020

of the plaintiffs dying in the interregnum period and in support of the

same, he placed reliance on the judgments reported in Mohd.

Hussain (Dead) by LRs. & others Vs. Occhavlal & Ors., and

Himangshu Bhusan Kar and others Vs. Manindra Mohan Saha2.

He further submits that the petitioners are ready to proceed with the

E.P. proceedings and the objection with respect to the

maintainability of the E.P. can as well be decided while deciding the

same itself. He also submits that on six occasions, the counsel for

the petitioners was present, however, there was no representation

on behalf of the respondents. In the circumstances, he prays for

allowing the Revision.

Learned counsel for the respondents opposes the Revision

and submits that the judgment and decree dated 10.04.2019 is a

nullity and is inexecutable, as, all the legal representatives of

deceased plaintiff No.3 were not brought on record and in the

circumstances, the E.P. is not maintainable. He also submits that the

trial Court had rightly granted stay of the E.P. proceedings.

From the above, it is evident that as on date, the E.P. is still

pending. It may be noted that whether the judgment and decree

dated 10.04.2019 would be nullity on account of the death of plaintiff

No.3 and as his legal representatives are not on record and whether

the E.P. is maintainable or not are the issues to be decided by the

trial Court after considering the submissions to be adduced by the

(2008) 3 SCC 233)

AIR 1954 Calcutta 205

CKR,J C.R.P.No.591 of 2020

respective learned counsel. In the circumstances, the order under

revision shall be considered as ad-interim order.

In that view of the matter, the Civil Revision Petition is allowed

and the order dated 09.01.2010 passed in E.A.No.50 of 2019 is set

aside. The matter is remanded to the trial Court to consider the E.P.

along with the E.A. and pass appropriate orders after considering

the submissions of the respective learned counsel, as expeditiously

as possible, preferably, within a period of eight (8) weeks from the

date of receipt of a copy of this order.

Consequently, miscellaneous applications, if any shall stand

disposed of. There shall be no order as to costs.

________________________ CHALLA KODANDA RAM, J Dt:09.06.2021

Note: Issue cc in one week.

kdl

CKR,J C.R.P.No.591 of 2020

CKR,J C.R.P.No.591 of 2020