Order No. 11/Dated 31st March, 2022

The instant petition is under Article 227 of the Constitution of India for quashing order dated 20.10.2012 passed in Execution Case No. 8(A)/2000 by which the petition filed on behalf of original petitioner-judgment debtor dated 07.05.2012 under Section 151 of the Code of Civil Procedure, has been rejected.

2. The brief facts of the case as per the pleading made in the writ petition read as under:

One Moris Kujur had filed a suit for eviction of the suit property against the original petitioner being Eviction Title Suit No. 45 of 1997, which was decreed in favour of said Moris Kujur on 31.07.2000. Thereafter, said Moris Kujur filed an application for execution of said decree being Execution Case No. 8(A)/2000. However, appeal, arising out of the eviction suit being Title Appeal No. 48/2000 was dismissed vide order dated 03.08.2002 Subsequently, the said Moris Kujur died on 23.12.2002 and his wife predeceased him, leaving behind no son or daughter but number of relatives.

It is the case of the petitioner that the present respondent, without making the legal heirs of late Moris Kujur a party filed a Probate case, being Probate Case No. 65/2003 and on the strength of forged Will got a probate granted in his favour on 11.05.2005 and on the strength of said probate, he got himself substituted in place of late Moris Kujur in Execution Case No. 8A/2000 vide order dated 04.09.2008.

According to petitioner-judgment debtor, he being the close relative of late Moris Kujur, after his death became his legal heir and as such the decree become un- executable, but, the present respondent who was having no relation with the deceased Moris Kujur on the strength of forged Will got a probate granted in his favour without making the legal heirs of Moris Kujur a party in the proceeding, as such the judgment passed in the Probate Case is not having binding effect on the petitioner or his legal heir(s).

However, immediately after knowing the fact that the respondent-Rajan Khalkho had been substituted in place of late Moris Kujur, he filed a petition on 07.05.2012 before the learned Court below under Section 151 of the Code of Civil Procedure stating therein that if the instant execution case is allowed to proceed at the instance of respondent, it shall be nothing but an abuse of the process of the Court as until the substitution of Moris Kujur is not made in accordance with law, the instant execution case may be stayed.

The respondent appeared and filed rejoinder dated 25.07.2012 to the petition filed by the petitioner.

The Executing Court, after hearing learned counsel for the parties, dismissed the petition filed by the petitioner vide order dated 20.10.2012, against which, the petitioner has invoked the writ jurisdiction of this Court under Article 227 of the Constitution of India.

3. Mr. Amit Kumar Das, learned counsel for the petitioner has submitted that the order impugned dated 20.10.2012 suffers from patent illegality since the executing Court has not appreciated the fact that the order dated 04.09.2008, by which the respondent has been substituted, since is based upon the forged Will passed in Probate Case No. 65 of 2003 and as such the aforesaid substitution petition ought not to have been allowed by the executing Court.

According to learned counsel for the petitioners having not recalled order dated 04.09.2008, before proper substitution of the legal heirs of the late Moris Kujur, the execution proceeding ought not to have been allowed to proceed but the executing Court without appreciating that aspect of the matter, has rejected the petition for recall of order dated 04.09.2008, therefore, the same is not sustainable in the eye of law.

4. While, on the other hand, Mr. Vibhor Mayank, learned counsel for the respondent has defended the order passed by the Executing Court on the ground that since the respondent has been substituted vide order dated 04.09.2008 passed by the Executing Court, on contest, on the basis of