JUDGMENT/ORDER :

Ashokkumar C. Joshi, J.

1. Rule.

2. This petition under Article 227 of the Constitution of India is filed by the petitioner praying for to quash and set aside the order dated 10.07.2015 passed below Exh. 233 in Special Execution Petition No. 332 of 1978 by the learned 7th Additional Senior Civil Judge, Vadodara. By the said application (Exh. 233), the petitioner - applicant had prayed to declare the proceedings that were carried out by Narharsinh and Premsinh, void and without any legal rights, after the demise of original decree holder namely Rukshmaniben Kshtriya on 18.02.1980.

3. Facts in nutshell of the case on hand are that a suit being Regular Civil Suit No. 456 of 1970 came to be filed before the learned Civil Court concerned at Vadodara which came to be decreed in favour of one Rukshmaniben. The said judgment and decree carried in appeal before the learned District Court by filing Civil Appeal No. 90 of 1996, wherein, the learned District Judge, Vadodara was pleased to confirm the said judgment and decree passed in the suit. Against which, Second Appeal (Stamp) No. 4961 of 1978 was filed, which came to be disposed of vide order dated 26.04.1979. Judgment creditor - Rukshmaniben filed the Special Execution Petition No. 332 of 1978 before the concerned learned Court below at Vadodara for the execution of the decree passed in Regular Civil Suit No. 456 of 1970, which is pending. In the said execution petition, the petitioner herein had filed the aforesaid application, which came to be rejected and hence, the petitioner is before this Court.

4. Heard, learned advocate Ms. Trusha K. Patel for the petitioner and learned advocate Ms. Arti Inamdar for the respondent No. 5.

4.1 The learned advocate for the petitioner submitted that the learned trial Judge has failed to consider the fact that the alleged Will of Madhavsinh, which was executed somewhere in the year 1939 in favour of Rukshmaniben, was not probated and the same was not genuine one. She submitted that without the Will being probated, the decree would be a nullity. She further submitted that in the civil revision application filed before this Court, the Court was pleased to keep the question as to the need to obtain the Probate open. She further submitted that it may be that for a Will executed by a Hindu qua the immovable property situated in the State of Gujarat, Probate is not necessary, however, the rights vested by virtue of that Will must be established, which is not the case herein.

4.2 The learned advocate for the petitioner further submitted that in the event of death of the original decree holder Rukshmaniben, the execution proceedings cannot be pursued and the claim of one Narharsinh that he was the power of attorney holder of said Rukshmaniben, could not survive upon her demise. Further, Premsinh has not produced any authority/ document to show that he was empowered/entitled to pursue the litigation of deceased Rukshmaniben.

4.3 The learned advocate for the petitioner would further submit that when the Adoption Deed was executed, the petitioner herein was above 15 years and hence, the same would be hit by Section 10 of the Hindu Adoption and Maintenance Act, 1956. Furthermore, the said Adoption Deed was not registered and hence, the same could not be presumed to be legal in the eyes of law. Despite such observations, the learned trial Judge has disallowed the application filed by the petitioner and thus, has erred materially.

4.4 The learned advocate for the petitioner further submitted that as per settled law, executing Court normally would not go behind the decree, but if the said decree was found to be nullity, then same could be challenged and interfered with at the subsequent stage/proceedings.

4.5 Moreover, the learned advocate for the petitioner submitted that the learned trial Judge has failed to appreciate the contents of Section 213 of the Indian Succession Act, wherein, it is specifically stated that no right as executor or legatee can b