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2019 Supreme(UK) 435
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Sudhanshu Dhulia, J.
Naseem Ahmed & others - Petitioners
Versus
1st Additional District Judge, Haridwar & others – Respondents
Writ Petition (M/S) No. 391 of 2004
Decided On : 15-07-2019
Advocate Appeared:
For the Petitioner:Mr. Siddhartha Singh, Advocate
For the Respondent:Ms. Anjali Bhargava, Mr. Arvind Vashishta, Senior Advocate assisted by Mr. H.S. Mehra, Advocate
Representation of minors and proper substitution of legal heirs are essential to safeguard their interests in execution proceedings.
Headnote:
Substitution - Civil Procedure Code - Order XXXII Rule 3
Fact of the Case:
The case involved a dispute over the execution of a decree for possession. The petitioners, legal heirs of the deceased defendants, contested the execution on the grounds of non-substitution of legal heirs and minors, leading to an ex-parte decree against the defendants.
Finding of the Court:
The court found that the legal heirs of one of the deceased defendants were properly substituted, and the interest of the minor children was represented by their mother, the legal guardian. The court also noted a dispute regarding the death of the other defendant, with court documents being relied upon as conclusive evidence.
Issues: The issues revolved around the proper substitution of legal heirs and representation of minors in the execution proceedings.
Ratio Decidendi: The court emphasized that the purpose of Order XXXII Rule 3 of CPC is to ensure that no decree is passed prejudicial to the interest of the minor, and representation is essential for this purpose.
Final Decision: The court found no fault with the orders of the lower courts and dismissed the writ petition, vacating the interim order.
JUDGMENT :
This writ petition arises out of the orders passed by the court below during the execution proceedings. It is an extremely old matter pertaining to the year 2004. The decree holder i.e. respondent no. 3 before this Court who had a decree in his favour has not been able to execute the same as there is an interim order dated 28.05.2004 passed by a Coordinate Bench of this Court.
2. Brief facts of the case are that a suit for possession was filed by the plaintiff (respondent no. 3 before this Court), in which there were two main defendants i.e. Abdul Majid and Mohammad Ishaq i.e. defendant nos. 1 and 2 and defendant nos. 3 and 4 i.e. Rajendra Nath and Virendra Nath were the proforma defendants. The case of the plaintiff was that the property was purchased by him and defendant nos. 3 and 4 from its erstwhile owner Sri Hari Chand vide sale deed dated 08.11.1971. Since the defendant nos. 3 and 4 were in the Indian Army and were deployed towards the border in the year 1971, the property was occupied by defendant nos. 1 and 2 taking advantage of absence of defendant nos. 3 and 4. Consequently, the defendant (respondent no. 3 before this Court) filed a civil suit before the Court of Munsif, Roorkee praying for a decree of possession.
3. During the pendency of the suit, out of the two main contesting defendants, defendant no. 2 passed away on 27.02.1982. The plaintiff thereafter moved an application for substitution under Order XXII Rule 4 of the Code of Civil Procedure (from hereinafter referred to as “CPC”). Substitution application moved by the plaintiff was allowed and the widow of deceased Mohd. Ishaq, namely, Smt. Mudi and the minor children through her mother were substituted as defendant nos. 2/1 to 2/7. Again during the pendency of the suit, defendant no. 1 also passed away on 22.12.1985. According to the petitioners, the legal heirs of defendant no. 1 were not substituted by the plaintiff.
4. The suit was decreed on 02.08.1989 against defendant no. 1 and defendant nos. 2/1 to 2/7 and the decree was put to execution. Subsequently, the legal heirs of the deceased Abdul Majeed (petitioners before this Court) filed an objection under Section 47 of CPC, against the execution. The application was dismissed by the court below vide its order dated 28.01.1998. Aggrieved by the order dated 28.01.1998, the petitioners filed a revision before the learned First Additional District Judge, Haridwar, which was also dismissed vide order dated 12.05.2004. Aggrieved by these two orders i.e. order dated 28.01.1998 and 12.05.2004, the petitioners have filed the present writ petition before this Court.
5. The case of the petitioners before this Court is that at that time when the ex-parte decree was granted in favour of the plaintiff (i.e. respondent no.3 before this Court), both the defendant nos. 1 and 2 had passed away and whereas the legal heirs of defendant no. 2 were substituted, the legal heirs of defendant no. 1 i.e. the present petitioners remained un-substituted. There is also no representation, as provided under the law, to the legal heirs and minor children of defendant no. 2 who had passed away even earlier to defendant no. 1 i.e. on 27.02.1982, inasmuch as no separate orders were passed by the trial court under Order XXXII Rule 3 of CPC appointing a guardian. In other words, they too were unrepresented before the court below, which has resulted in an ex-parte decree against the defendants.
6. Learned Senior Counsel for the private respondents, on the other hand, would argue that as far as substitution of legal heirs of defendant no. 2 is concerned, immediately after the death of defendant no. 2 a substitution application was filed by the plaintiff, which was allowed and defendant nos. 2/1 to 2/7 were substituted.
7. The substitution application has been perused. The substitution application was made on behalf of the plaintiff for substituting all the legal heirs of defendant no. 2 i.e. the widow as well as the minor children of th
