IN THE HIGH COURT OF JUDICATURE AT BILASPUR, C.G. WRIT PETITION N0. g 435” aoos (Petition under article 227 of the Constitution of India) PETITIONER/ . DECREE HOLDER Mohanial, aged about 8O years, S/o late Madhavram Sahu, R/o village Basin" Tahsil Gumr, Distt. Durg (CG) ‘ VERSUS \ r ‘Tv‘. RESPONDENTS/ : 1) DECREE DEBTORS Bhupat Singh, S/o Mohanlal Sahu, aged about 60 years, R/o village Basin, Tahsil Gumr, Distt‘ Duxg, (CG) Tammdhwaj, S/o Mohanlal, aged about 5S years, ccéupation — agriculture, R/o village Pauwara, Distt‘ Duxg, (C G.) Moukamlal, S/o Mohanlal Sahu, aged about 55 years; occupation agriculture, R/o village - Paiaura Tahsil Berla, Dist‘LDuIg (C.G.) Puxanlal, S/o Mohanlal, aged about 48 years, occupation agn‘culmre, village Basin tahsil Gum, Distt. Durg (CG) Jiyantqai, Wife of Mohanlal, aged about 76 years, R/o village Basin. Tahsil Gumr, Distt‘ Durg (CG) Bindabai, widow of Bhuvan SinglL aged about 92 years (dead) R/o village Basin, Tahsilr Guam“, Distt‘ Durg (C‘Gr) through their legal repreeentatives :- Yeemendra Kumar. adopted son Bindabai, aged about 28 years, R/o village Durg (clerk District Panchayat Durg) Revati Bai, wife of Bhupat Singh, aged about 58 years‘ (dead on 06/0 5/200 1) through the legal representatives :— 3) 6) T) 69 H: a) Jankibad wifc of Dayalal Sahu, agcd about 42 years, R/o Civil Lincs, Qtt. No. 24/18 Kasmidih Durg, CG. b) Umesh Kumar, S/o Bhupat Singh, aged about 39 years, R/o Vmage Basin, Tahsil Gumr, Distt. Durg (C.G.) Toshhlmax, S/o Bhupat Singh, aged about 35 years, R/o village Basin, Tahsil Gunu, Distt Durg (CG) d) Yugal Kishom, S/o Bhupat Singh. aged about 33 ycam R/o Rcvati Sadan, Subhashnagar, DUIg (C.G.) Smc of Cmlamsgaxh, thxoughthc C01lcctor Dmg, (CG) 9) Shivchaxan, S/o Dhanesh Sahu, aged about 49 years, occupation agn'culture, R/o village Chiturgahan, Distt. Durg (0G,) 10) Chamanlal, S/o Dayaluram aged about 31 yams, 11) Tikamram, S/o Dayaluram Sahu, aged about 89 years, both agncultudst , R/o village Titurgahan, Distt. Durg (C.G.) 1‘2.) Kunjbm; wife of Jeetan Sahu, aged about 38 years, Agriculturist, Rfo Village Basin, Tahsil GunmDisu. Ding (CG) 13‘) Buddhu Ram, S/o Shobhil Kewat, aged about 52 years, occupaiion Agriculture, R/o village Titurgahan, Tahsil Gumr, Dislt. Durg (C.G.) Gokul S/o SonuranL aged about 53 years, occupation agriculture, Rfo village Titurgahan, Tahsil Gurur, Distt. Durg (C.G.) (died on 255/95) 15') Mahasingh, S/o Gajram Sahu, aged about 54 years, Q) X6) Soman, S/c Gajmm, agcd about 49 ycms. 17) HemlaL S/o Gajmm, aged about 44 yams, Sim). 15 to 17 R10 village Titmgahan, Tam“ Gumx,Distt. Dmg (C.G.) / 8/; Shambhoo S/o Palian Sahu, aged about 79 f, wars, (died on 03/05/2002) 4 :13 / I9) Ramkram, S/o Pattan Sahu,“agcd¥ab_out 74 years, 20) Ramadhan S/o Paltan Sahu, aged about 73 years, 31. No. 18 to 20 an Agn‘cmnm‘st and R/o village Titmgahar, Tahsil Gm'ul, Distt. Durg (CG) 21) Shankar, S/o Kunjlal, aged about 23 yeaxs, 22) Yashwam, S/o KunjlaL aged about 20 years, Sl. No. 21 and 22 bom agriculturist. R/o Village Pauwara, Distt. Durg (C.G.) 23) Urwabai wife of Jangalram Sahu. aged about 48 years, 24) Laxmanlal, S/o Jangakam aged about 30 years, 25) Santosh Kumar, S/o Jangalram, aged about 28 years, SI. Nor 23 to 25 occupation agdculturist and R/o vmage Pauwara Tahsil and Distxict Durg (CG) 26) Ramhinbai, wife of “l'ouxlal Yadav, aged about 53 years, agriculturist and Rio Village Pauwara Distt. Durg (CG) q@ (£1) / / / 273” Manjhax s/o Bum Samam aged about 53 years, ,ocdlpaiicm ayicultmé, R/o village Pauwam Distt.Dmg (C.G.) fdicdon7/5/98). 28) Kalpnath, S/o Badal Yadav, aged about 53 yams, occupation agn'cultuxist, R/o vi11agc Pauwam, Disu. Durg (CG) 29) Bakhanvg S/o Bhavna Samm‘; aged abput 63 yeafs, igiculturist R/o Village Pmwara, Distt‘ Durg (C.G.) 30‘) Budhiyaxinoai, widow of MnknmTSatnami, aged about 63 vears agxicultmist, R/o vinagc Pauwam, Dian. burg (CG) 31‘) Dhaxmcndra Kumar. S/o Siyaram, agcd about 18 years, occupation agiculnm'st, R/o Village Pauwara. Disn. Durg (C.G.) WRIT ETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRIT OF MANDAMUS/ CERTIORARL ORDER/ORDERS, DIRECTION/DIRECTIONS ETC. P @ _ XI-HC-78 mm“ .P wiles mzoa . ......n............'.... rmsrmqafm) anémmWH-l: ‘ mmmmw r WWM§13§$VWW ammstmqzs $Wanéa 5PM Vishnu Kosm, cuns for he petifianer. Heard. The pe+i+ioer has preeed fhis pefi'rion under r‘ricie 226/227 of The ConsTiTu‘H of India uesTioning The ieguih‘y, _preprie1‘y,-and corec‘fness of he order dafe ’22005 passed by earned Addifional Diricf Judge, Balod in Execion Case No.1OA/98 where arned AddiTionai DisTricT dge has jected The applictio of The pe‘rifioner file under Order 22 Rule 4 of he CPC 'For sus‘l‘i‘ru‘i’ion and consequef i'here'i'o ihe execu‘napplicaii on ‘ihe rou Thai spcnden'r Nos.4- Cv'okul & responder-f No.27 har had died befoe passing Qf +he Ju dr 21 2 p Na 8 S die 3 5 22 L Ai r + dg h m ps earned dd‘rional Dis+ Jue observed fa‘i' as o erons had already die before ass of ‘'he judgmen'i’ ecree as Such plica''ion for subsiifu‘iion of eir legal heirs ca? b allowed. Even fhe plicafion far rining le heirs o respanden‘i' No.18-Sabhulal on record was also rejec‘i'ed- o uli'imo‘reiy, The execu'rion case was rejected being aba‘i'ed. The impugned order passed by learned Addi‘rionol Disirici' Judge is pm‘eni’iy illegal and perverse on The face of if, Therefore, noTices of This peTiTion are noT being issued To The responding: as The issuance of F " r t d 7 l sf hf by le Ju re an d + b n iiao gnd re 1 i M i r dgmen‘i- and ecee dafed 900 and resondenf 1 hambulal also d on 00 i ‘ ‘ U 16.9.2005 oe T n frr A on q d pi g i and d upi h me e ap bg g f m Xl-HC—78 @ W mqi$ ....., .................'I-II-II: W200 »marm'(1af§aa) anéamiéaiai " ~ v. mmmma WWW§WW ammer'mqim .4.» ‘ aawmer l "ho'fic'ea wouid unnecessary de fhe execu'l'ion proéeedihgs which is. pending since 2001. However, if'fhe responden‘i‘s feel aggrieved by This ardar ihay wi“ be. a‘r liberty To move uppiica'fion before fhis Cour'f for modificafian/recaliing of fhis 0rd r. Brief facTs Iedding To fiiin of This pefh‘ion arewhaif The pe'ri’rioner! hgrein filed a civil suif against he respondznfs herein for declara'rion, permanent injunc‘i’ion and pam‘iti n. The said s‘uif was decreed in favour of The peTifioner' vide judgmenf nd decree da‘red 21.2.2000. ThereafTer The pe'i'i‘i'ioner herein filed an e ecu‘rion case before iearned Addi‘i‘ional Dis-iric‘.‘ Judge and when The n Tices of 1’he said execu'rion case were sen‘i' fa “the judgmen‘f-deb'i'or‘s, as per fhe ease af fhe pe‘i’i‘i’ianer, he came i'o know Thu? responden'i’ (33.14, 18 & 27 had died. Accordingiy, he moved The appiica‘rion under 0rd r 22 Rule 4 0f The CPC for bringing fhe legal heirs of +hese respondents on record. Reply of fha‘l- application was filed by respondent NosS ‘i’o 1 and 16, 17, 19 d 20 men‘l'ioning Therein "iha‘l responden‘l No.14-Gokul ded on 25.5.1995 6i respondenf No.2?- Manihar died an 7.5.1998 mu before +he passing of judgmenf and decree, Therefore, The suiT was abaTed againsT Them and The applicaTion cannoT be allowed. Allowing T e objecTion of The above responden‘l's, learned AddiTional DisTricT Judg passedlThe impugned order. Shri KoshTa, learned c nsel for The peTiTioner argued ThaT ained ex—par'l'e afTer service of The respondenT Nos.14l 18 & 27' : m Xl-HC-7B amtw (WW) anéwwiiaiai - aarranéwm‘ mmw anéer Fg‘ “summons in “the suit +here‘Fore, mm‘ewm wwma \\ as nof mandafory for The pefifioner To bring legal heirs of respondenf 05.14, 18 6i 27 on record, as “they were ex-par'i'e and decrée could have been passed in +heir- absence. Thamf’br‘e,’ ?he order impugned is perverse. Having heard learned c0 nae! for fhe pefi‘rioner‘, I have perused ‘the pefi‘rign, impugned arder‘ an provisions 9f sub-rule (4) of Rule 4 of Order 22 of ‘rhe CPC. ii‘ is evidepf from Pa a 11 of Judgmen‘r and decree da'fed 21.2.2000 Thai excep'r resp nden‘r Nos.1, 6 a: 7 agains‘r Ether respondenfs proceedings were drawn ex-per‘l'e, as fhey he&"feiled 7h: appear before The Cnur‘i’. Th refore, ‘i'his fac'i' is no? dispu‘i'ed ‘Hm'i- Responder” No.14,a18 5i 27 w re remained ex—parfe before The cour? before passing of fhe 5ub-rule (4) of Rule 4 of Order 22 of The CPC provides fhef; “ The 6'aur7‘ whenever as per provisions of sub-rule (4) of Rule 4 of Order 22 of i'he CPC, i1” hath/vs fit may exempr" #7e piazhr‘iff from #72 necessiiy of befifufihg #12 /egai represenfafives' of any such defendan wha has fcw’ed rq f/Ye a wrfi'fen sfaiemem‘ er who; haw g filed if, has failed fa appear and confesr we suii' af #1 hearihg: and Judgmew?‘ may, in sac}? case, nomifhsfandlhg the de #7 of such defendam" and shal/ have, be ' FfOHOUI1€€ agamef #Ie said defendant?“ mmqi$ -.,...... mzoo judgmenf and decree-defed 21.2.2000. a ’ i Xl-HC-78 W WM; ..... . ..... ............. 111200 6% anésmw (W) anésm‘rWm ammam mmwma WWW#WW€R ‘41” H wwmw #Ie same“ force and sffecf' a9 if If has been yranatmcsd before a’em‘h fool: place.’ Sub-rule (5) fum‘her provides fhq't; “ Where - {a} Tim p/a/hfiff was [gnoranr of fhe dea'fh of a defendmr, and cgu/d not, for fhaf reason, make m gap/Vmfion for" #7e subsrifufion of file lega/ remesem‘afive of fhe defendan? under 1M5 rule wirhin me period specified in fire LIM/rm‘ion f, 1963 rand fh suif has, in consequence, aéaf af and (b) #16 p/crihfiff gpp/f 5' after #12 expiry af #1e period in five Lmifa'fian Act I9§3 for . ‘serr/hg aside oboremeor and also for me admission of #mf' piicafion under $ecfion 5 of fhaf Act or! #Je grouri fhaf he had, by reason of such ignorance, suffici nf cause for no? making #16 app/icofian wifhlh fhe period specified in #72 said flcr Me (buff she”, 1h eons hg #1: app/I'mffan under 1%: said 5eofion 5, kave due regard fo facf of such ignorance, ifprove ." gaze/fled fheref m / c e a i m e XI -HC-78 a m§qi$ .......V............. ‘.........' ........ E2oo metm (W) mmw mar #ff “‘WTher‘efore, In View of ‘Hne 4 0f Order 22 of fhe CPC evzn i and decree and he Was ex-par're +o pass 1+1; Judgmenf and nofwifhsfanding The dea'fh of The force and effecf as if if has been Learned Addi+ional Dis'i‘ric above provisions haé rejecTed under Grder 22 Rule 4 Vof 14m anéetrmiim'm. v ~’ Hananésrimia; mm#mm wwmet ‘ above provisions 0:5 sub—ruie (4) oFiriRuie F a defendan? dies before fhe judgmen‘r In hag proceedings, fhe Cour? is enii‘Hed decree againsi fhe said defendanif pronounced before dearh fook piace. 1* Judge wh‘houf Taking no‘rice of The rhe applicafion of The peTiTioner ‘fiied CPC and consequenfiy rejecfed Thé execufion appiicm‘ion aiso, fhere‘l‘are This order is perverse, iiiegnily and 'Hmre is nc alfarna‘five bu? f0 ::e+ aside" 141E ordgr. Accgrdingly, 'H'm pe‘ti‘Hon is ailowed, order impugned, is hereby s2? dside and iearnea' Addi’rional District Judge, Balod subwies (4) (EQ) of we 4 of order accordance wifh fhe provisions oi 22 of “the CPC. The ‘pefifioner‘ w H be enfiTied »To mave beforé The ccur‘f beiow‘ for passing ordér under su -r'uia (4) of Rule 4 of Order 22 of ihe CPC. IA. No.8058/05 STandsdi Cerfified copy as per rules. said defendan‘r and sha“ have ‘rhe same o'sed of. Sd/— L.C.BHADOO Judge s directed To proceed with The case in