The absence of legal representatives of a deceased party in execution proceedings renders the execution improper, requiring the court to address objections regarding ownership and property details.

ORDER :

K. MANMADHA RAO, J.

This Civil Revision Petition is preferred aggrieved by the order dated05.07.2024 passed in E.P.No.47 of 2023 in O.S No.131 of 2008 on the file of Civil Judge (Senior Division), Tadepalligudem (for short “Executing Court”).

2. The present impugned EP No.47 of 2023 in O.S No.131 of 2008 has been filed by the respondents herein before the Executing Court seeking to issue prior notice to J.D R under Order 21 Rule 54 C.P.C and to attach the Schedule property there after issue notice to J.D.Rs under order 21 Rule 64 to 66 C.P.C and brought the same for sale and recover the E.P amount, subsequent interest etc. After hearing the submissions of both the learned counsels and keeping in view the circumstances of the case the Executing Court has allowed the said E.P. at the stage of Rule 22 of Order 21 of the Code and held that the schedule property is ordered to be attached under Rule 54 of Order 21 CPC and simultaneously order Rule 54 (1-A) CPC notice to the judgment debtors on process. Aggrieved by the same, the petitioners herein preferred the present Civil revision petition.

3. Heard Sri T.V.Jaggi Reddy, learned counsel appearing for the petitioner and Sri K. Mahadev, learned counsel appearing for the respondents.

4. On hearing, learned counsel for the petitioner submits that the order of the Executing Court is contrary to law and suffers from jurisdictional errors. He submits that the Executing Court ought to have seen that the suit O.S No.131 of 2008 is filed against the petitioners herein for recovery of amount Rs.2,00,000/- with subsequent interest basing on the promissory note dt.26-05-2006 and the said suit was decreed on 23-02-2011. He further submits that the Executing Court ought to have seen that the 1st respondent herein had filed E.P No. 135 of 2011 and the same was withdrawn, as by the time of filling the said E.P 1st respondent/D.Hr is no more. Moreover, the Executing Court ought to have seen that the present E.P is filed for attachment of 96.sq.yards with R.C.C roofed building bearing Door number 7-82, in R.S no.322 of Meenavalluru Village Grampanchayat, Pentapadu Mandal, West Godavari District with specific boundaries. Learned counsel for the petitioners submits that the petitioners are not owners of the said land and that the respondents herein had not filed any document to show that the said property to be sold belong to the petitioners. He further submits that the Hon'ble Executing Court ought to have seen that a counter is filed by the petitioners herein specifically stating that the respondents/Petitioners in the E.P had not produced any succession certificate to execute the Decree as the D.Hr who obtained Decree is no more and the Decree is executable by the Respondents No.2 & 3 herein. Learned counsel mainly contended that even by the date of filing of E.P No. 135 of 2011 the Decree Holder is no more and no steps were taken by the Respondents No.2 & 3 herein in the said E.P. When the said E.P was dismissed no liberty was sought to proceed against the properties of J.Dr in future, and hence the E.P is not maintainable as it is res judicata and the impugned E.P. is barred by limitation. Further, the Hon'ble Executing Court ought to have seen that the L.Rs of 1st Petitioner herein were not added to the present E.P. as the 1st petitioner died after the decree was passed jointly against her and the 2nd petitioner herein, the L.Rs of the 1st petitioners are proper and necessary parties and that the boundaries, door number mentioned for the E.P schedule property is not correct and no survey number was also mentioned. He further submits that the EP schedule property does not belong to either of the petitioners, as the same belong to the mother-in-law of the 2nd petitioner. He further submits that the Hon'ble Executing Court ought to have seen that when the notice was issued under Order 21 Rule 22, C.P.C to the petitioners/J.Dr herein the counter filed by them has to be considered before passing p