A decree remains executable even if some defendants are deceased, provided their heirs are on record and did not contest the suit.

JUDGMENT :

The petitioner has been filed the instant petition under Article 227 of the Constitution of India for quashing the order dated 13.02.2018 passed by learned Sub Judge-8, Vaishali at Hajipur in Execution Case No. 4 of 2017 whereby and whereunder the learned executing court rejected the application filed for dismissal of the execution case.

2. The conspectus of the case, as it emerges from the record, is that the petitioner is one of the judgment-debtors and respondent no. 1 is the decree-holder in Execution Case No. 4 of 2017. It appears from the records that the respondent no. 1 filed Title Suit No. 162 of 1998 against the petitioner and respondents 2nd and 3rd sets or their ancestors with a prayer for declaration of his title and possession over 3 acres 43 decimals of land described in Schedule 1 of the plaint apart from other reliefs. Subsequently, by way of amendment, realization of mesne profit was also added as one of the reliefs. During pendency of the suit, some defendants died and their heirs were substituted. After service of notices, defendants appeared and three sets of written statements were filed on behalf of the defendants. Title Suit No. 162 of 1998 was decreed on 28.02.2017 with a direction to the defendants to hand over vacant possession of land, in question, to the plaintiff within a period of sixty days, failing which the plaintiff would be entitled to get possession of land in question, through the process of the court. Mesne profit was also allowed in favour of the defendants. Aggrieved by the judgment and decree passed in Title Suit No. 162 of 1998, the petitioner and the respondents 3rd set filed Title Appeal No.33 of 2017, which is pending before the learned District Judge, Vaishali at Hajipur for its disposal. On the basis of judgment and decree dated 28.02.2018, the plaintiff filed Execution Case No. 4 of 2017 for execution of decree in the court of learned Sub Judge- 8, Vaishali at Hajipur against all the defendants named in the decree. The petitioner appeared on 14.09.2017 and informed the learned executing court about pendency of Title Appeal No. 33 of 2017 and also filed an application seeking stay of the execution proceeding till disposal of the appeal. The learned executing court was also informed about pendency of the application seeking stay before the learned appellate court. However, both the applications were dismissed by the learned executing court vide order dated 25.09.2017 and taking steps for appointment of Nazir and police force, for execution of decree in question, were ordered.

3. It further appears that during pendency of the execution proceeding, the petitioner became aware about the deaths of some of the defendants, namely Rasulan Nessa, Johara Khatoon, Chanda Devi, Ali Hussain and Ram Pukari Devi which took place on 25.01.2010, 10.03.2015, 20.05.2015, 21.09.2015 and 14.01.2017, respectively during the pendency of the suit and no substitution of heirs/legal representatives was made for the deceased defendants by the plaintiff. The petitioner, after obtaining the death certificates of some of the defendants filed an application before the learned executing court on 15.12.2017 apprising the court about the deaths of some of the defendants during pendency of the suit and for holding that decree under execution was non-executable being nullity as the same was passed against dead persons. Thus, the petitioner prayed for dismissal of the execution case on the aforesaid ground. A rejoinder to the said application was filed on behalf of the decree-holder on 21.12.2017 taking a number of defences and praying for dismissal of the application. The matter was heard by the learned Sub Judge-8, Vaishali at Hajipur, which rejected the application of the petitioner vide order dated 13.02.2018. The said order is under challenge before this Court in the present petition.

4. Mr. Mahesh Narayan Parbat, learned senior counsel appearing on behalf of the petitioner, submitted that the impugned o