P. B. MAJMUDAR, J.

( 1 ) BY filing this Revision Application under Section 115 of the Code of Civil procedure, the petitioner herein has challenged the orders passed by the executing Court below Exh. 1 and order dated 7. 4. 1998 below exh. 25 both in regular Darkhast No. 19 of 1997.

( 2 ) GUJARAT Electricity Board instituted a suit, being Civil Suit No. 70 of 1990, against one Patel Manilal Nagardas for recovery of Rs. 10,528-25 with interest at 15% p. a. . Learned Civil Judge J. D. , sidhpur issued summons returnable on 26. 4. 1990. Ultimately, by judgment and order dated 15. 1. 1991. learned Civil judge J. D. , Sidhpur decreed the suit of the plaintiff with cost and interest at 12% p. a.

( 3 ) AT this stage, it is required to be noted that the said Patel Manilal Nagardas expired on 26. 4. 1990, i. e. on the first returnable date. Yet, in paragraph 2 of the judgment and order passed by the learned trial Judge, it is observed that the defendant appeared and sought time often to file written statement and the Court granted time in the interest of justice but the defendant has not filed any written statement, the suit was ordered to he proceeded ex pane.

( 4 ) ON the basis of the said decree. Execution Petition No. 19 of 1997 was filed by the Gujarat Electricity Board against the present petitioner, who is the legal heir of the original defendant Palel manila! Nagardas. In the execution proceedings, the present petitioner appeared before the Court on 10. 3. 1998 and sought time to file reply. On 24. 3. 1998, the applicant herein filed a reply to the darkhast and also filed an application Ex. 23 praying for stay of the Darkhast and for time to prefer appeal. On the said application Exh. 23, the learned Trial Judge passed the following order : "heard the learned advocate for the parlies. Looking to the facts of the case and application given, the stage of the reply of darkhast has been closed on 30/10/98 and the matter was for hearing of plaintiff and on call learned advocate of defendant was absent. Hence the learned advocate for plaintiff was heard and order for jungam warrant has been passed. And the order passed on 24/3/98 is not appealable and the order has been passed and the application given by the learned advocate of defendant on default is not as per the provision of law. Hence the application is rejected. "

( 5 ) THEREAFTER, on 25. 3. 1998, the present petitioner appeared before the Court and filed an application pointing out that the patel Manilal Nagardas expired on 26. 4. 1990, and the judgment and order dated 15. 1. 1991 being against dead person, is a nullity and the execution proceedings is required to be stayed. The learned Judge rejected the application on the ground that the executing court cannot go behind the decree, and the order of issuance of jangam warrant cannot be cancelled. The Trial judge also found that heirs of the deceased were given ample opportunity to file reply but they have not filed any reply. The Trial judge also found that if the decree is passed against a particular person and if he is dead, his heirs are required to file appropriate reply in execution petition. The learned Trial Judge rejected the application against which the legal heirs of deceased defendant Patel Manilal Nagardas has filed the present Revision.

( 6 ) WHEN this Revision Application came up before a Co-ordinate Bench of this court [coram : C. K. Buch, J] the learned single Judge observed as under in his order dated 6. 10. 2005:-"it appears from record that the respondent-Gujarat Electricity Board had filed a Suit for recovery, etc. against one manilal Narandas Patel of village Kalyana, tal. Sidhpur. The summons of the Suit was made returnable on 26th April, 1990. There is evidence on record which is found prima facie satisfactory that on that very day the defendant had expired. So obviously he could not have appeared before the Court. Recording absence of served defendant, the court proceeded with the Suit and passed a d

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