IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11878 of 2010 1. SURENDRA MISHRA @ SURENDRA PRASAD MISHRA S/O LATE SUSHIL MISHRA R/O MOHALLA- JOGSAR SWAMI VIVEKANAND PATH, P.O.- JOGSAR, P.S.- KOTWALI, DISTT.- BHAGALPUR. ------------------- Petitioner Versus 1. SMT. TRIPTY SINHA W/O LATE SUNIL KUMAR SINHA R/O PODDAR TOLI JOGSAR, P.S.- KOTWALI, DISTT.- BHAGALPUR 2. URMILA SAHAY W/O LATE SATRUGHAN SAHAY R/O MOHALLA- JOGSAR, P.S.- KOTWALI, DISTT.- BHAGALPUR 3. SANTOSH KUMAR SAHAY S/O LATE BABU SATRUGHAN SAHAY R/O MOHALLA- JOGSAR, P.S.- KOTWALI, DISTT.- BHAGALPUR 4. CHITTARANJAN SAHAY S/O LATE BABU SATRUGHAN SAHAY R/O MOHALLA- JOGSAR, P.S.- KOTWALI, DISTT.- BHAGALPUR 5. AKHILESH SAHAY S/O LATE BABU SATRUGHAN SAHAY R/O MOHALLA- JOGSAR, P.S.- KOTWALI, DISTT.- BHAGALPUR 6. SUBODH SAHAY S/O LATE BABU SATRUGHAN SAHAY R/O MOHALLA- JOGSAR, P.S.- KOTWALI, DISTT.- BHAGALPUR 7. MUKUL SAHAY S/O LATE BABU SATRUGHAN SAHAY R/O MOHALLA- JOGSAR, P.S.- KOTWALI, DISTT.- BHAGALPUR. ----------------------Respondents ----------- For the Petitioner:- Dr. Manoj Kumar, Adv. ------------ 2. 08.09.2010 Heard learned counsel for the petitioner. 2. This writ petition has been filed by the defendant Judgment debtor-petitioner challenging the order dated 05.06.2010 by which Munsif 2nd; Bhagalpur dismissed Misc. Case No. 13 of 2010 which was filed by the petitioner under Section 47 of the Code of Civil Procedure in Title Execution Case No. 3 of 2007. 3. It transpires that the plaintiffs (Tripty Sinha and her husband Late Sunil Kumar Sinha) -decree holder filed Eviction Suit No. 2 of 1993 for eviction of the defendant –judgment debtor- petitioner from the suit premises on the ground of personal necessity. The said suit was decreed on contest vide judgment and decree dated 14.2.2007 which was challenged by the defendant-petitioner in this Court but this Court also affirmed the aforesaid judgment and decree 2 of the Trial Court. 4. It further transpires that both the aforesaid plaintiffs filed Execution Suit No. 3 of 2007 for execution of the aforesaid decree of eviction which has attained finality. However, during the pendency of the execution case one of the plaintiff namely, Sunil kumar Sinha (plaintiff no. 2) died and in that view of the matter the defendant-judgment debtor-petitioner filed an application under Section 47 of the Code of Civil Procedure which was numbered as Misc. Case No.13 of 2010 for holding that due to the death of plaintiff no. 2 the decree cannot be executed as it was for his personal necessity. The said miscellaneous case has been rejected by the learned Court below by the impugned order on the ground that one of the plaintiff’s namely Tripty Sinha is alive and she is also the heir of her husband and hence the said execution has proceeded in accordance with law. 5. This order has been vehemently challenged by learned counsel for the petitioner but from the facts and circumstances of the case it is quite apparent that the suit premises was the purchased premises of the said plaintiff no. 1 Smt. Tripty Sinha in which business was being done and even if the business was done by the husband (plaintiff no. 2), after his death the business devolved upon his heir namely, Smt. Tripty Singh who is his widow. Further more the requirement of the suit premises claimed by the plaintiff for expansion of the existing business of the plaintiffs, was affirmed by the Trial Court and was upheld by this Court and hence, when the said business required expansion it was irrelevant whether it was run by 3 plaintiff no. 2 or his heir plaintiff no. 1. 6. In the said circumstances, this Court does not find any illegality in the impugned order of the Court below nor does it find any merit in this petition which is accordingly dismissed. However, the executing Court is directed to take immediate steps in the execution case for its earlier disposal if not yet disposed of. Anand Kr. ( S. N. Hussain, J.)