- (1.) S. U. Khan, J. This revision is directed against the order dated 6-7-1985 passed by the District Judge, Mirzapur dismissing the objection under Section 47, C. P. C. (Miscellaneous case No. 90 of 1985) filed by the applicant No. 1, Shiv Narain Pandey, since deceased and survived by legal representatives in Execution Case No. 5 of 1981, Shiv Narain Pandey v. K. B. Degree College Association, Mirzapur. The said case was filed for execution of decree (ex parte) passed in O. S. No. 294 of 1968. The only ground on which objection was filed was that defendant No. 2 Gayatri Prashad had before the suit was decreed (ex parte) and his Legal Representatives had not been substituted hence the decree sought to be executed was nullity.
(2.) OPPOSITE Party, K. B. Degree College Association, Mirzapur filed the suit (O. S. No. 294 of 1968) for possession against, S. N. Pandey, original applicant No. 1 in this revision and his father Gayatri Prasad. The suit was for possession over a piece of land. Gayatri Prasad did not file any written statement. Written statement was filed only by S. N. Pandey, stating that he alone was the owner of the property in dispute. Proforma defendants Bithal Prasad and Nar Singh Narain Gupta had died during the pendency of the suit. However as they had filed written statement admitting the claim of the plaintiff, hence their death and non-substitution of their heirs did not make any difference. The suit was decreed ex parte on 10-5-1977. It is mentioned in the impugned order, that against the ex parte decree, defendant No. 1, S. N. Pandey agitated the matter up to High Court but remained unsuccessful. Applicants No. 2 to 9 in his revision are daughters and grand sons of Gayatri Prasad Pandey. They were not applicants in the objections under Section 47, C. P. C. before the Court below, hence the revision on their behalf is not maintainable.
(3.) DEFENDANT No. 1 in his written statement filed in the suit claimed that the property belonged exclusively to him. His father Gayatri Prasad Pandey did not claim any right in the property and did not file written statement. In such situation it cannot be said that the ex parte decree was a nullity for want of substitution of heirs of Gayatri Prasad. In any case, applicant No. 1 was one of the heirs of Gayatri Prasad, hence he could sufficiently be deemed to represent the estate of Gayatri Prasad. In this regard reference may be made to Dayanand & Ors. v. Shyam Sundari, AIR 1965 SC 1049 and Harihar Prasad Singh v. Balmiki Prasad Singh, AIR 1975 SC 733. It has been held in (Thanara Palli) Surya Narayana v. (Gopavajhala) Joqa Rao & Ors. , AIR 1930 Mad 719 and Nathuni Narayan Singh & Ors. v. Mahant Arjun Giri & Ors. , AIR 1925 Pat 434, that it is not correct to say that a party, who was heard and against whom a decree had been passed on merits can take advantage of the death of another party and delay in the early hearing of the matter.;