Allahabad High Court
Deepak Kumar And 2 Others vs Asha Devi And 4 Others on 8 June, 2020
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- MATTERS UNDER ARTICLE 227 No. - 2088 of 2020 Petitioner :- Deepak Kumar And 2 Others Respondent :- Asha Devi And 4 Others Counsel for Petitioner :- Sushant Misra Hon'ble Manoj Kumar Gupta,J.
Heard Sri Sushant Misra, learned counsel for the petitioners and perused the record.
The instant petition invoking supervisory jurisdiction of this Court under Article 227 of the Constitution has been filed challenging the order dated 11.11.2019, passed by the Executing Court in Rent Execution Case No. 6 of 1999 and the order dated 20.11.2019, passed by District Judge, Farrukhabad in Civil Revision No. 226/74/19.
In brief, the facts of the case are that the petitioners were tenants of a premises owned by one Sita Ram. He filed a suit for eviction of the petitioner. The said suit was decreed in his favour. He filed an application for execution of the ejectment decree. It was registered as Execution Case No. 6 of 1999. During pendency of the execution proceedings, Sita Ram died. One Kuldeep Kumar filed an application 13-E for his substitution as heir and legal representative of deceased Sita Ram on basis of an unregistered Will said to have been executed in his favour by deceased Sita Ram. The substitution application was allowed by order dated 23.2.2007 and name of Kuldeep Kumar was substituted in place of deceased Sita Ram. Consequently, he prosecuted the execution case, but before the decree could be satisfied, he also died. Thereafter, his widow Asha Devi and sons applied for their substitution in his place. It is at this stage that the petitioner filed an application 40-E, raising objection to the effect that the widow and children of deceased Kuldeep Kumar could not be substituted, as substitution of Kuldeep Kumar in place of deceased Sita Ram itself was erroneous, inasmuch as the alleged Will on basis of which he claimed right was an unregistered one and also never brought on record. Asha Devi, widow of deceased Kuldeep Kumar, filed objection to the said application, stating that the substitution application filed by Kuldeep Kumar for his substitution in place of deceased Sita Ram was duly served upon the counsel for the petitioners. Since no objection was filed against the said application, therefore the Court proceeded to allow it by order dated 23.2.2007. Since thereafter, Kuldeep Kumar prosecuted the execution case, without any objection from any quarter. Now after Kuldeep Kumar had died, it is not open to the petitioners to raise objection regarding his substitution.
The Trial Court after considering the objections, rejected the application filed by the petitioners seeking recall of order dated 23.2.2007, after returning a specific finding that substitution application of Kuldeep Kumar was decided on merits; that the will has already been brought on record; that such objection could only be raised by widow of Sita Ram, but who has not filed any such objection; that the petitioners who are merely tenants and have already suffered a decree of eviction, cannot be permitted to raise such a plea.
Learned counsel for the petitioners submitted that the objections could not be filed against the substitution application of Kuldeep Kumar as at the relevant time, the petitioners were minors. However, he does not dispute that their mother who was their natural guardian and one of the judgment debtors was duly contesting the execution proceedings for herself and on behalf of the petitioners. It is also not in dispute that the order of substitution was passed in the year 2007 and its correctness was never doubted until Kuldeep Kumar was alive. It has also not been disputed that widow of Sita Ram, nor any other legal representative, had ever filed any application claiming any interest in the suit property.
This Court in view of the above facts and circumstances and for the reasons stated above, fully endorses the view taken by the Executing Court and declines to interfere with the same in exercise of supervisory power under Article 227 of the Constitution.
The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J.) Order Date :- 8.6.2020 Jaideep/-