1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Appeal from Order No.89 of 2009 With Civil Application No.7451 of 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Advocate Shri V.P. Golewar,Adv. for appellants and Shri R.R.Imale, Advocate for Respondents. 2. This appeal from order is filed by legal representatives of deceased judgment debtor Trimbak in Special Regular Darkhast No.35 of 2002 pending before the III Joint Civil Judge, Senior Division, Latur. 3. Some of the facts giving rise to this appeal are admitted. Present Respondents-original decree holders had filed Special Civil Suit No.89 of 1987 for specific performance of the contract. That suit came to be decreed 2 by the learned Civil Judge, Senior Division, Latur and it was directed that the decree holder should deposit Rs.1,68,750/= on or before 13.10.1989 and the deceased judgment debtor Trimbak should execute sale deed in favour of Respondents. Thereafter Special Regular Darkhast No.35 of 2002 was filed and in the mean time appeal was also filed by deceased Judgment Debtor in the District Court. Learned District Judge dismissed the said appeal and thereafter darkhast proceedings proceeded further. 4. On 23.7.2008, vide application Exhibit 36, Respondents-decree holders prayed the executing court to issue notice to judgment debtor and accordingly notice was issued. Before service, judgment debtor died on 15.8.2008. The decree holder filed purshis regarding death of judgment debtor on 18.9.2008. In spite of that, executing court proceeded with execution proceedings and sale deed was executed through the court on 7.11.2008 without bringing legal heirs of 3 deceased judgment debtor on record. Present appellants claim to be the legal heirs of deceased judgment debtor and they made application exhibit 44 for bringing them on record as legal heirs of the deceased judgment debtor. They also filed application Exhibit 46 for setting aside the sale and application Exh.47 for stay to further proceedings. Learned Judge rejected all three applications and hence, present appeal from order. 5. It may be noted that when the original judgment debtor expired on 15.8.2008 and decree holder had brought that fact to the notice of the court by pursis Exh.39 on 16.9.2008, the executing court ought not to have proceeded with proceedings for execution. 6. It is not the case of decree holders that the judgment debtor had no legal representatives. In the circumstances, the execution proceedings appear to have proceeded 4 against dead person and the sale deed dated 7.11.2008 came to be executed on behalf of the dead person. Legality of such sale deed is questionable. It would be doubtful whether such a sale deed executed on behalf of dead person even if by the court knowing about death of such person, would be legal and valid. In fact, the decree holders ought to have brought legal heirs of deceased judgment debtor on record before proceeding with the execution of sale deed. 7. The reason given by III Joint Civil Judge, Senior Division, Latur while rejecting application Exh.44 in Special Darkhast No.35 of 2002 on 30.6.2009 is that the application was beyond limitation and there was no application for condonation of delay or for setting aside abatement. If anything has abated on death of judgment debtor it is the Darkhast itself. Executing court should not have proceeded with Darkhat proceedings. The learned Civil Judge, therefore, committed error in rejecting 5 application Exh.46 and allowing execution of sale deed on 7.11.2008. 8. It is true that applications at Exhibits 44 and 46 in Special Darkhast No.35 of 2002 were beyond limitation. But, in the circumstances pointed out hereinabove, it is in the interest of all the parties that delay should be condoned and those applications should be allowed. Consequently, applications at Exh.44 and 46 filed in Special Darkhast No.35 of 2002 deserve to be and are accordingly allowed. The executing court is directed to bring the appellants herein as legal heirs of deceased judgment debtor on record. Application Exh.46 for setting aside sale though filed under Order 21 Rule 90 of C.P.C. the same should have been allowed at least under Section 151 of C.P.C. 9. In the circumstances, since the judgment debtor was already dead and thus the sale deed executed on 7.11.2008 is on behalf of deceased person, draft of the sale deed be 6 served on the appellants as heirs of deceased judgment debtor and thereafter execution may proceed further in accordance with law. Application Exh. 48 is rejected. Darkhast should proceed in accordance with law. Parties, including appellants, agree to appear before executing court on 17.11.2009. 10. Appeal from Order is therefore allowed. Copy of this order be sent to the concerned court immediately. 11. In view of appeal from order being disposed of, civil application No.7451 of 2009 does not survive and the same stands disposed of accordingly. Date:12/10/2009 (P.R.BORKAR, J.) pnd/ao89.09