IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.42 of 2005 1(a) MRITYUNJAY KUMAR (b) Sanjay Kumar 2. Ram Chandra Prasad Singh 3. Rajeshwar Prasad Singh All sons of late Ram Ekbal Singh, all residents of village Chaknur, P.S. Hajipur, District Vaishali ... Plaintiffs-petitioners-petitioners Versus 1. RAM NANDAN RAI 2. Kapildeo Rai Both sons of Bhikhari Rai, residents of village Khiya, P.S. Hajipur, P.O. Harauli, District Vaishali 3. Baijnath Rai 4. Ramjee Rai Both sons of late Puran Rai 5. Rameshwar Rai, son of Ram Sharan Rai All residents of village Madarpur, P.S. Hajipur, District Vaishali ... Defendants-Opp.Parties-Opp.Parties ----------- For the Petitioner : Mr. Naresh Chandra Verma, Advocate For the opposite Party : None ---------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (08.12.2010) Mihir Kr. Jha,J. Heard Mr. Naresh Chandra Verma, learned counsel for the petitioners. No one despite service of notice has appeared on behalf of the opposite parties though from the records it transpires that one Mr. Mahendra Thakur an Advocate of this Court had filed Vakalatnama on behalf of O.P.No.1. The facts giving rise to this civil revision application lie in a very narrow compass. The father of the petitioners had 2 instituted a suit for declaration of title and recovery of possession being T.S.No. 36/1980 which was decreed on 6.10.1982. Thereafter he had also levied a execution case being Execution Case No. 7/1991 and while the said execution case was pending, at the stage of delivery of possession, it was dismissed for non-prosecution by an order dated 8.7.1997. Thereafter the father of the petitioners also died on 23.7.1997 and after his death the petitioners had subsequently filed an application for restoration of the execution case on 7.4.1998. The said prayer for restoration of the petitioners having been rejected by the impugned order dated 5.10.2004, the present civil revision application has been filed by them which after being admitted by an order dated 30.1.2006 has been listed for final hearing. Mr. Naresh Chandra Verma, learned counsel for the petitioner, would submit that there is an apparent jurisdictional error in the impugned order, inasmuch as the court below has failed to take into account that if the execution case had not abated, its restoration was well permissible within 3 the ambit of section 151 C.P.C. He has further submitted that the execution case being levied only by the father of the petitioners who was the plaintiff in the connected suit, his death was occasioned on account of his illness and the execution case had only been dismissed for default some 15 days earlier to his death. He has, therefore, proceeded that the court below having taken into account the nature of execution proceeding and the right of the petitioners, the heirs and the legal representative of the sole plaintiff, who had died during the execution stage had to be protected by allowing them to prosecute the execution proceeding for which restoration of the execution case was in tune with the provisions of the Code of Civil Procedure. As noted above, there is no representation on behalf of the opposite parties but then this Court has carefully gone into the findings recorded in the impugned order. The court below in fact seems to be of the opinion that since the petitioners had not filed any separate execution case and the earlier execution 4 case has been dismissed for default, they had no right to get the earlier case restored. Such a view of the court below in fact would lead to an absurd situation in law, inasmuch as restoration of an execution case dismissed for default is not barred. The question would be that if the sole plaintiff executing his decree dies can his heirs be altogether excluded from being substituted? In the considered opinion of this Court since there is no bar for such substitution, the petitioners being heirs and legal representative of the sole plaintiff will have an equal right to also get the execution case restored which was dismissed for default. To that extent the view recorded by the Calcutta High Court as noted in the impugned order in the case of Annada Prasad Mitra vs. Sushil Kumar Mandal, reported in AIR 1942 Cal. 390, is a complete answer to the issue in hand. The reliance placed by the court below on the judgment of Andhra Pradesh High Court in the case of Sri Tankala Appalaswamy Giri Samba Murthy Vs. Gopasundara Sabatho, reported in AIR 1963 A.P. 127, by picking up only the placitum 5 thereof is not the appropriate way of laying down proposition of law because what has been decided therein is with regard to maintainability of a subsequent execution proceedings instituted by the heirs and the legal representative of the deceased plaintiff who had earlier filed his execution case. Moreover what ever has been held by Andhra Pradesh High Court in Murthy's case (supra) is in the backdrop of Andhra amendment in Rule 104 and 105 in order 21 C.P.C. which is not applicable in the State of Bihar. These two situations are absolutely different, inasmuch as it is always open for the heirs and legal representatives of the deceased plaintiff, who was executing his decree, to prosecute the execution case after the death of the decree holder. To that extent there is sufficient power under Order 22 Rule 5 C.P.C. which, as noted above, has not been excluded even in respect of execution proceedings. Thus, on a reading of the provisions of Order 22 Rule 5 C.P.C. with Rule 12 it would be clear that as and when even in execution proceeding an application is filed for prosecuting the execution case 6 the court below has to decide first the question of legal representative. This can however only be done if the execution case which had been dismissed on account of non- prosecution is restored. In the light of the aforementioned discussions, this Court is of the considered opinion that the court below ought to have allowed the prayer of the petitioners for restoring the execution case and failure to do so was an apparent jurisdictional error on its part. This application is, accordingly, allowed. The impugned order is set aside and the court below is directed to now proceed and pass a fresh order on the application of the petitioners seeking restoration of execution case in the light of the observations made above. There would be, however, no order as to costs. (Mihir Kumar Jha,J.) Patna High Court Dated the 8th December 2010 A.F.R./Surendra/