IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Writ Petition No.5057/2008 Gulam Hussain & Another Versus District Civil Judge & Others Date of Order :: 31st July, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Shailesh Prakash Sharma for the petitioners Mr. G.K. Garg for the respondents BY THE COURT: The petitioners have filed an application dated 24th July, 2008 under Order 22 Rule 4 CPC for substitution of legal representative of deceased respondents no. 2/1 Badri Lal, 2/3 Brij Mohan, 2/7 Koshalya Bai and 2/8 Gulab Bai, on record. The learned counsel for the respondents has also filed application dated 24th July, 2008 under Article 226 of the Constitution readwith Section 151 CPC with a prayer that the application may be allowed and Vakalatnama of L.Rs. Of Brij Mohan may be taken on record. The names of respondents no. 2/1 Shri Badri Lal, 2/2/7 Kaushalya Bai and 2/8 Gulab Bai may be deleted from the array of respondents. 2. After considering the submissions of learned counsel for the parties, the application filed by the petitioners is allowed. The legal representatives of deceased respondents, as mentioned in the application, are taken on record. 3. In view of above, there is no need to pass any oder on the application filed by the respondents and the said application stands disposed of. Mr. Gopal Garg, advocate appears for the contesting respondents, therefore, the service of other respondents is dispensed with at this stage. 4. The learned counsel for the respondents has also filed an application for vacation of ex-parte interim stay order dated 23rd May, 2008 under Article 226(3) of the Constitution, but during the course of arguments, the learned counsel for both the parties contended that writ petition itself may be heard and disposed of finally. 5. The prayer is allowed. The application under Article 226(3) of the Constitution is dismissed. The writ petition is taken up for hearing. 6. Admit. 7. Heard learned counsel for the parties. 8. The plaintiff-respondents filed a suit for specific performance of the agreement against the defendants in the year 1960 which was decreed on 9th October, 1968 against 9 defendants including Ambika wife of Peer Bhai and Gulam Hussain S/o Peer Bhai. Being aggrieved with the same, an appeal was preferred by the defendants before the High Court which was dismissed on 1st May, 1980. Thereafter, the defendants preferred special leave petition before Hon'ble Apex Court which was also dismissed. The plaintiff-decree holder filed an application for execution of the decree in the executing court. One of the judgment debtor Gulam Hussain filed an objection petition under Section 47 CPC. The reply to the objection petition was also filed. During the pendency of that objection petition and execution petition, the judgment debtor Gulam Hussain died on 4th September, 2005. His legal representatives were not brought on record, therefore, the decree holder filed an application in the executing court on 3rd March, 2006 that legal representatives of Gulam Hussain have not been placed on record in objection petition filed by him, therefore, objection petition is liable to be dismissed as abated. Subsequently an application was filed on behalf of Mr. Mansoor Dayani, one of the legal representative of Gulam Hussain in the execution petition to substitute his name, which was allowed and he was allowed to represent all the legal representatives of Gulam Hussain. The learned trial court vide is order dated 5th May, 2008 passed an order that in absence of any application for substitution of legal representatives on record in the objection petition filed by deceased Gulam Hussain, the objection petition has abated and consequently the objection petition was dismissed. In the said order it was also directed that Mr. Mansoor Dayami will represent all the legal representatives of deceased Gulam Hussai in the execution petition. The said order is under challenge in this writ petition preferred on behalf of the judgment debtor Mr. Mansoor Dayani S/o late Shri Gulam Hussain. 9. Learned counsel for the petitioners contended that the executing court has committed a serious illegality in rejecting the objection petition filed on behalf of Gulam Hussain on the ground that his legal representatives have not been substituted in his place, whereas one of the legal representative Mansoor Dayani was allowed to be substituted in execution petition and objection petition was filed in execution petition itself, therefore, the same legal representative of deceased Gulam Hussain ought to have been treated as substituted in objection petition also, whereas learned counsel for the respondents contested the matter and contended that objection petition is altogether different from execution petition, therefore, the trial court has not committed any illegality in passing the impugned order, whereby the objection petition has been dismissed as abated. 10. I have considered the submissions of learned counsel for the parties and examined the impugned order dated 5th May, 2008. The decree of specific performance was passed way back on 9th October, 1968 against 9 defendants including Gulam Hussain S/o Peer Bhai. Shri Gulam Hussain filed an objection petition in the execution petition filed on behalf of the decree holder. Gulam Hussain died on 4th September, 2005 and an application was moved by his one legal representative Mr. Mansoor Dayani on 29th October, 2005 to substitute his name. The execution petition and objection petition both were going on simultaneously in same executing court. In view of that, the name of Shri Mansoor Dayani was substituted in execution petition, therefore, his name should have been treated as substituted in place of Gulam Hussain in objection petition also. In view of above, I find that executing court has committed an illegality in dismissing the objection petition filed on behalf of late Shri Gulam Hussain in the facts and circumstances of the present case. The execution court has already passed an order that Mr. Mansoor Dayani will represent all the legal representatives of deceased Gulam Hussain, therefore, executing court is now directed to proceed further with the execution petition as well as objection petition both in accordance with law. The impugned order of court below stands modified as above. 11. At this stage, learned counsel for the petitioners contended that there are some more legal representatives of deceased Gulam Hussain, therefore, a liberty may be given to other legal representatives of Gulam Hussain to file an application in case they want to file the same in accordance with law. The prayer appears to be reasonable. As and when any application is filed on behalf of other legal representatives of deceased Gulam Hussain, then the same will be considered and decided in accordance with law at the appropriate stage. 12. There will be no order as to costs. (Narendra Kumar Jain),J. DK