An Executing Court has the jurisdiction to refuse execution of a decree that is void due to the death of a defendant, as it constitutes an abated suit not permissible under law.

JUDGMENT :

M.M. Sathaye, J.

1. Rule. Learned counsel for the respective Respondents waive service in both the petitions. Rule made returnable forthwith. Taken up for final disposal by the consent of parties.

2. These petitions are being heard together since they were directed to be clubbed and placed together for hearing under administrative order dated 16 December 2023.

CASE

3. In Writ Petition No. 1958 of 2017, the Petitioners are the original Plaintiffs, who are challenging the impugned order dated 9 August 2016 passed below Exh.1 in Civil Misc. Application No. 3 of 2013 in Execution Petition No. 1 of 2010 by the Executing Court (Civil Judge, Senior Division, Dadra and Nagar Haveli, Silvasa). Survey No. 13/2/1 admeasuring 1H 6 R, Survey No. 13/2/2 admeasuring 3 R, Survey No. 13/2/3 admeasuring 7 R all situated at village Rakholi Union Territory of Dadra and Nagar Haveli Khata No.71 are the subject matter properties of the present petition and same are collectively referred to as ‘the suit properties’ for short. By this impugned order, the Executing Court has allowed the application of Respondents thereby granting stay to the decree under execution.

4. Few facts shorn of unnecessary details are as under. The Petitioners are sisters and one Raviyabhai is their brother. After the death of their father Babarbhai in 1987, the names of Petitioners and said Raviyabhai were entered in the records of the suit properties. In the year 2005, the Petitioners filed Regular Civil Suit No. 52 of 2005 for partition and separate possession of the suit properties. On 7.03.2007, an order was passed by which the suit was directed to be heard ex-parte because the original defendant Raviyabhai failed to remain present though served. On 01.02.2008, original defendant Raviyabhai expired. The knowledge of this death of real brother vis-a-vis Petitioners (sisters) is a contentious issue. On 22.04.2009, the Trial Court (Civil Judge, Dadra and Nagar Haveli) decreed the said suit ex-parte thereby holding that the Petitioners are entitled to 1/3rd share each along with defendant in the suit properties. On 22.07.2009, the present Respondents, who are legal heirs of the original defendant Raviyabhai, filed Civil Misc. Application No. 6 of 2009 under the provision of Order IX Rule 13 of the Civil Procedure Code, 1908 (‘CPC’ for short) for setting aside the ex-parte decree. In the year 2010, the Petitioners filed Execution Petition No. 1 of 2010 for execution of the ex-parte decree. On 13.08.2012, the aforesaid application under Order IX Rule 13 filed by Respondents came to be dismissed on merits, holding that it cannot be proved that deceased Raviyabhai had a sufficient cause to remain absent in the said suit. The Respondents filed Civil Appeal No. 4 of 2012 challenging the said order dated 13.08.2012, however the appeal was also dismissed on 11.01.2013.

5. After the Respondents failed in their attempt to get the ex-parte decree set aside, they moved an application on 24.01.2013, being Civil Application No. 3 of 2013 under Section 47 of the CPC seeking declaration that the ex-parte decree dated 22.04.2009 is not executable. This application was seriously contested and eventually the Executing Court, by the impugned order, has allowed the application thereby holding that the said ex-parte decree is obtained against the dead person and it is stayed. It is in these circumstances, that the Petitioners/original plaintiffs/decree holders have filed the present petition.

6. One of the legal heirs of the deceased Raviyabhai (Smt. Geeta Prabhu Patel), who is Respondent No.1 in Writ Petition No. 1958 of 2017