IMPORTANT POINT
Non-executability of decree – If decree is not nullity, executing court is required to execute such decree unless it has been set aside by a competent court in an appropriate proceeding.

JUDGMENT (CAV)

The present petition has been filed under Article 227 of the Constitution of India against the order dated 04.12.2018 passed by the learned Sub Judge-7, Begusarai in Execution Case No.1/2016 whereby and whereunder the petition dated 03.02.2018 filed on behalf of the judgment debtor has been rejected.

2. The respondents are decree-holders and they filed Title Suit No. 171 of 2007 against the grandfather, father and uncle of the petitioner in the court of learned Sub Judge, Begusarai. The suit was filed for declaration of title in respect of Schedule-A property and for recovery of possession from defendants 1st and 2nd set by demolishing the construction made by them on the suit land as well as for mesne profit and injunction. The defendants appeared and filed their written statement controverting the claim of the plaintiffs. Title Suit No. 171 of 2007 was finally heard and decided vide judgment and decree dated 08.09.2016 on contest in favour of the plaintiffs. The defendants 1st set, who are members of joint family of the petitioner, preferred appeal before the learned District Judge, Begusarai vide Title Appeal No. 14/2016 and the said title appeal is still pending for final hearing. Meanwhile, the decree-holders filed Title Execution Case No. 01/2016 in the court of learned Sub Judge- 1st , Begusarai, which is pending before the court of learned Sub-Judge-VI, Begusarai. In the execution case, the petitioner and other defendants appeared and challenged the maintainability of the execution proceeding by filing a petition on 03.02.2018. The decree-holders filed their objection on 17.02.2018 to the petition dated 03.02.2018 by way of a rejoinder. Both parties were heard and the learned executing court vide the impugned order dated 04.12.2018 rejected the petition filed by the petitioner.

3. The learned counsel appearing on behalf of the judgment-debtor no.2/petitioner submitted that the learned executing court passed the order erroneously as it failed to appreciate that the execution proceeding could not be continued as the judgment and decree was passed against a dead person and for this reason, the judgment and decree are nullity and cannot be executed through the process of law. The learned counsel further submitted that the defendant no.7 (f), namely Sageeta Devi died on 13.03.2015 before the judgment and decree dated 08.09.2016, but without substituting her legal heirs/representatives in her place and without excluding her name from the plaint, the judgment and decree came to be passed against a dead person making the decree nullity and not executable. In support of his contention that the decree passed by the learned trial court against a dead person is nullity, the learned counsel placed reliance on the decision rendered in the case of Gurnam Singh (D) through L.Rs & Ors. Vs. Gurbachan Kaur (D) by L.Rs. & Ors. reported in 2017 (2) PLJR 414 (SC). Further, the learned executing court failed to consider that the suit property as mentioned in the plaint is non-existent and decree could not be executed due to vague description and ambiguity over the boundary. The learned counsel further submitted that the land is non-existent and unidentifiable and the suit land has got no separate identity and the part area and plot number cannot be demarcated being part and parcel of the residential house of the petitioner, but the learned executing court completely overlooked this important aspect of the matter. The learned counsel further submitted that the claim and defence of defendants 1st set is joint and inseparable, hence, on account of death of Sangeeta Devi and non-substitution of her heirs, the suit became incompetent and the judgment passed in the suit is illegal and bad in the eyes of law and the same cannot be executed. The learned counsel further submitted that the respondents did not answer the claim of the petitioner about non-existence of disputed property and in the counter affidavit, there is no specific den