By means of this writ petition the petitioners have come up to this Court against the execution proceedings being initiated by the respondents being Execution Case No. 3 of 2012.
The facts of the case are that a suit for declaration and possession was filed by the husband and father of petitioner nos.1 and 2 respectively against father of respondent no.1 being Suit No. 46 of 2000. The said suit came to be decreed against the plaintiffs by judgment and decree dated 12.8.2009. The plaintiffs in the said suit preferred an appeal being Appeal No. 53 of 2009 before the District Judge, Mahoba on 11.9.2009.
It is submitted that during the pendency of the appeal the husband of petitioner no.1 and father of petitioner no.2 died on 28.9.2010 and also the defendant in the said suit, namely, Bhumitra Chaurasia, i.e. the father of respondent no.1 also died on 16.11.2010. It is claimed that the petitioners had no knowledge of the pendency of the suit or filing of the appeal. In the meantime, the heirs of defendant filed Execution Case No. 3 of 2012 and summons were issued upon the petitioners. It is also claimed that for the first time they came to know about the pendency of the aforesaid proceedings. Upon enquiry the petitioners came to know that the said appeal was abated by order dated 21.11.2011 on account of non substitution of the appellants as well as the defendant-respondent. The petitioner then moved an application along with Section 5 of the Limitation Act under Order XXII Rule 9 CPC as well as for impleading as party. The application for recalling the aforesaid order was not considered as the application under Section 5 of the Limitation Act was rejected on 7.2.2014 holding that the petitioners were aware of the proceedings against which the petitioners filed a writ petition before this Court being Writ Petition No. 19093 of 2012 and this Court vide its order dated 2.4.2014 issued notices to the respondents in that writ petition which is still pending. In the meantime, the respondents are pressing for execution of the decree.
It is submitted that the petitioners are illiterate women and had no knowledge of the pendency of the aforesaid suit or filing of the appeal. The moment, they came to know about the same, the aforesaid application has been moved for recalling the said order of abatement as well as the impleadment of petitioners. It is further submitted that the petitioners have also filed an objection to this effect under Section 47 CPC before the executing court, which has not yet been decided. It is submitted that in case the execution proceedings are not stayed, the petitioners will be thrown out of the house on the street as they have no other place to stay.
The matter requires consideration.
Issue notice to the respondents returnable at an early date.
Learned counsel for the petitioners will take steps for service of notice upon the respondents within a week.
The respondents may file counter affidavit within one month.
List this matter after the expiry of the aforesaid period.
In the meantime, it is directed that the executing court may consider the objections of the petitioners and pass appropriate orders thereon in accordance with law. It is further provided that any further action in the execution proceedings shall be subject to the final decision of this Court in this writ petition.
Order Date :- 11.8.2014 SKM