# Revisionists v. Executive Engineer, I. and Planning Division, Allahabad and others - **Citation:** (2002) 1 ILRA 187 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2000-02-29 - **Case number:** Civil Revision No. 211 of 2000 - **Bench:** B.K. Rathi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionists-v-executive-engineer-i-and-planning-division-allahabad-and-others-39789 - **Pages:** 3 ## Headnote Code of Civil Procedure Order, 20 Rule 12 - Whether the provision of 0.22 r. 12 is applicable in execution proceeding? Held - 'No' but after the death of decree holder-the hairs must be brought on record - fresh application for execution - not maintainable. Held - Para 8 This principle will equally apply to the decree holder. Therefore, the execution cannot proceed till the heirs of the decree holder are brought on record in her place. Case law discussed: AIR 1957 All 647 AIR 1955 Cal 573 ## Text 1All] Makkhan Lal Jaiswal and others V. Executive Engineer Iand Planning and others 187 should be compensated by 'realistic' costs payable to the witness. 7. In respect of the present case U/s 354/504 IPC & 3(1) (x) SC/ST Act, I have heard learned counsel for the applicant who has relied upon the decision in the case of a learned Single Judge of this Court in the case of Jokhan Patel Vs. State of U.P. (2001) 2 JIC 459. 8. The facts of this case are that in Sessions trail no. 96 of 1998 an application was moved by the accused for recalling PW-2 Smt. Mamta for further cross examination. She is the lady who is alleged to have been molested by the accused. The only vague ground mentioned in the application was that during the earlier cross- examination certain main points were left out from being asked. The Addl. Sessions Judge has rejected the said application on the ground of vagueness. 9. In cases of rape and outraging modesty of a woman, recalling the victim for evidence requires some exceptionally serious grounds. Therefore, I am of the opinion that the impugned order passed by the Sessions Judge does not call for interference under the inherent powers of this Court. Having regard to these facts, the decision relied upon does not help the applicant. The present application under section 482 CR.P.C. is accordingly dismissed. --------- REVISIONAL JURISDICTION CIVIL SIDE DATED THE ALLAHABAD: 08.01.2002 BEFORE THE HON'BLE B.K. RATHI, J. Civil Revision No. 211 of 2000 Makkhan Lal Jaiswal and others ...Revisionists Versus Executive Engineer, I. and Planning Division, Allahabad and others ...Opposite Parties. Counsel for the Revisionist: Sri Vimlesh Srivastava Counsel for the Opposite Parties: Sri R.D. Singh. Code of Civil Procedure Order, 20 Rule 12 - Whether the provision of 0.22 r. 12 is applicable in execution proceeding? Held - 'No' but after the death of decree holder-the hairs must be brought on record - fresh application for execution - not maintainable. Held - Para 8 This principle will equally apply to the decree holder. Therefore, the execution cannot proceed till the heirs of the decree holder are brought on record in her place. Case law discussed: AIR 1957 All 647 AIR 1955 Cal 573 (Delivered by Hon'ble B.K. Rathi, J.) 1. Smt. Vidyawati Gupta, who was the owner and landlady of House No. 17/25 Hemilton Road, Allahabad filed Suit No. 93/79 for eviction and recovery of arrears of rent against the Executive Engineer, Investigation and Planning INDIAN LAW REPORTS ALLAHABAD SERIES [2002 188 Division of State of Uttar Pradesh. There was an office of Executive Engineer in the premises. Sri M.A. Majid was posted as Executive Engineer and was living in a portion of the premises and he was also made a party in the Suit. The Suit was decreed on 13.04.1982; that decree has been put to execution by Smt. Vidyawati Gupta, who has since died on 15.12.1982. However the execution is being prosecuted by respondent no. 1 Sri Rajesh Pandey. He claims that Smt. Vidyawati Gupta left Smt. Meera Gupta and Sri Rakesh Gupta as her heirs; that Smt. Meera Gupta and Sri Rakesh Gupta executed the power of attorney in his favour to execute the decree. Therefore, he is entitled to execute the decree and has filed general power of attorney executed in his favour. 2. The Present revisionists filed objections in the execution, which were treated as objections under Section 47 C.P.C. They allege that they have purchased the property from Smt. Meera Gupta and Sri Rakesh Gupta, heirs of Smt. Vidyawati Gupta; that. Therefore the decree cannot be executed by Smt. Vidyawati Gupta or by her general power of attorney holder. It was further pleaded that Smt. Vidyawati Gupta died on 15.12.1982 whose heirs have not been impleaded and therefore the execution cannot proceed; that there is no general power of attorney in favour of the opposite party no. 2 to execute the decree. 3. The learned Addl. District Judge, before whom the execution is pending considered the objections. She has held that paragraph 18 of the general power of attorney of Meera Gupta and Rakesh Gupta authorize opposite party no. 2 to execute the decree. Therefore, Rajesh Pandey, opposite party no. 2 is entitled to execute the decree. The learned Addl. District Judge, therefore, has rejected the objections of the revisionists by order, dated 29.02.2000. Aggrieved by it, the present revision has been filed. 4. I have heared Sri Vimilesh Srivastava, learned counsel for the revisionists and Sri R.D. Singh, learned counsel for the opposite party no. 2. 5. The first point raised before me in this revision is that execution of the decree was filed by Smt. Vidyawati Gupta is execution case no. 14/82. Admittedly, Smt. Vidyawati Gupta had died on 15.12.1992. Her heirs has still not been substituted in the execution. It is true that in the light of the provisions of Rule 12 of Order 22 C.P.C., the provisions of Order 22 C.P.C. does not apply to the execution proceedings and the execution cannot abate on the death of the decree holder, but the question is as to whether from this provision it can be concluded that execution can proceed after the death of the decree holder without substitution of his heirs. The reply will certainly be in negative. There must be somebody to prosecute the proceedings and the execution proceedings cannot be proceeded till the heirs of the decree holder are substituted. The decree holder, who moved application for execution died as back as in the year 1982. Her heirs have still not been substituted. The natural question is as who will prosecute the execution proceedings. 6. In Manmohan Dayal & others Vs. Kailash Nath & others Air 1957 Allahabad, Page 647, Division Bench of this Court has observed that if an execution is already pending at the 1All] Indrapal V. Shankar Lal 189 instance of the decree holder, his legal representative, after his death need not make a fresh application for execution and it is sufficient that they apply for continuation of the proceedings in the pending execution. (under-lined by me) 7. The other decision relevant to the point is of the Division Bench decision of Calcutta High Court in Smt. Raj Lakshmi Dassi vs. Bonomali and others AIR 1955 Calcutta, Page 573. In this case the judgment-debtor had died during the pendency of the execution. His legal representatives were not brought into record. It was held that the Court cannot proceed with the execution. 8. This principle will equally apply to the decree holder. Therefore, the execution cannot proceed till the heirs of the decree holder are brought on record in her place. 9. In view of this, the other points raised in this revision do not require decision at this stage. The revision is, therefore, fit to be allowed. 10. The revision is, accordingly, allowed and the impugned order is quashed. The matter is sent back to the Executing court who will provide opportunity for substitution of the heirs of deceased decree holder and thereafter shall proceed with the execution in accordance with law and shall also decide the objections of the present revisionists according to law. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 18.12.2001 BEFORE THE HON'BLE J.C. GUPTA, J. Second Appeal No. 798 of 2001 Indrapal ...Defendant-Appellant. Versus Shankar Lal ...Plaintiff-Respondent Counsel for Appellant: Sri Faujdar Rai Sri Chandra Kumar Rai Counsel for the Respondents: Sri H.P. Tripathi Cooperative Land Development Banks Act 1964 - Section 22 - Agreement to Sale - the land already mortgage with Bank stood redeemed after repay of entire amount of loan suit for specific performances - both the Courts below recorded concurrent findings to the effect - held - section 22 (i) has no application. Held - Para 9 As already pointed out above both the courts below have recorded concurrent findings that in the present case the mortgage made in favour of the bank stood discharged on account of entire amount of loan with interest thereon having been paid to the bank. In view of this findings bar created by Section 22 stood removed and thus there was no legal Impediment in enforcing the agreement in question. Sub section (2) of Section 22 has no application to the facts of the present case as no lease was granted nor rights created by virtue of the agreement in question in contravention of sub-section (1) of Section 22.