Ashwani Kumar Mishra, J. - (1.) This petition is by the three sons of late Jayanti Prasad, Son of Kaushalya Devi, challenging the order passed by the executing court dated 10.3.2014, as well as the order dated 24.2.2015 affirming it in revision. A further order directing the process to be initiated in execution, dated 24.2.2015, is also assailed. Prayer has been made to allow the application filed under Section 47 of the Code of Civil Procedure in Misc. Case No.114 of 2009, arising out of Execution Case No.7 of 2009.
(2.) Facts, which are in issue, are that plaintiff Ram Rati instituted a suit for eviction of defendants, including Jayanti Prasad and later his sons, with the allegation that property in question i.e. House No.S-30/181, Shivpur, Varanasi, belongs to him, and that defendants were continuing in possession over part of the house as licensee. It is claimed that licence has been terminated, and the defendants are liable to be evicted. Notices were issued in the suit. Sahabdin, one of the sons of Jayanti Prasad, appeared in the suit, but did not file any written statement. Suit was ultimately decreed by the Small Causes Courts on 7.1.2008, after noticing the fact that order to proceed ex-parte as against the defendants had attained finality. At this stage, it would be appropriate to notice some of the averments made in the plaint. It was admitted to the plaintiff that property was purchased exclusively in the name of Smt. Kaushalya Devi, who was earlier married to one Bal Karan. Sale deed of the property in question, executed in favour of Kaushalya Devi on 22.2.1954 was brought on record, in which Kaushalya Devi was identified as wife of Ram Rati. Kaushalya Devi died sometime in 1979. It appears that name of Ram Rati was thereafter mutated in revenue records, and he executed three wills on 9.5.1988, 5.12.1989 and 5.12.1993. In the second will, he also created right over part of the property in defendant Jayanti Prasad, which was followed with a subsequent will, in which no rights were given to Jayanti Prasad. Ram Rati, however, claimed that it was he, who had purchased the property in the name of Kaushalya Devi, and this fact was since known to the defendant, therefore, it was never objected. It is, however, not in issue that Kaushalya Devi was the recorded owner of the property, and no declaration was granted prior to filing of original suit no.126 of 1993, in favour of Ram Rati, to the effect that he was the owner in possession of the property, or that the house property in question was his Benami property, as was alleged. These issues, however, have not been examined either by the trial court or by the appellate court, particularly as there was no contest on merits on these aspects. Against the ex-parte decree, an appeal was filed in the name of Sahabdin, Sadanand, Mahanand and Shyam Kumar, sons of Jayanti Prasad, and memo has been annexed at page 62 of this petition. The memo of appeal apparently has been signed by all four brothers. The memo of appeal bears 24.1.2008 as the date of its filing. The appeal was registered as Civil Appeal No.15 of 2008, and various grounds were taken to challenge the order. It would be appropriate to notice that at the time when appeal was preferred, Ram Rati had died, and Smt. Sudama Devi and Krishna Kumar Kashyap, who are opposite party nos.1/1 and 1/2 in this petition, contested the appeal, based upon the will of Ram Rati executed in the year 1993. The appellate court returned a finding that on the basis of will, which is duly exhibited, the respondents in appeal are the owner of the property, and as an application under Order 9 Rule 7, filed by the defendant, had already been rejected, therefore, there is no infirmity in the decree passed by the court below. The appeal accordingly was rejected on 20.8.2008. While deciding the appeal, however, the issue as to in the absence of a declaration of ownership granted in favour of Ram Rati, whether the property could be presumed to be a Benami property of Ram Rati was neither considered nor answered. Records reveal that thereafter an application under Section 151 CPC was filed before the appellate authority stating that out of sons of Jayanti Prasad, Sahabdin had colluded with opposite party nos.1/1 and 1/2, and had fabricated the signatures of present petitioners upon the memo of appeal, and that petitioners had no knowledge of filing of the suit; passing of decree therein; and filing of appeal or its dismissal. This application was rejected on 24.2.2015. An objection under Section 47 CPC was also filed taking a similar stand, contending that in fact notices had not been served to all the defendants in suit, inasmuch as though a direction was issued to effect service by publication, but steps were not taken. It was also stated that filing of the appeal by other brothers of Sahabdin was a fraud played upon the court by Sahabdin, who had colluded with heirs of original plaintiffs. It was also contended that decree was otherwise bad, inasmuch as once it was admitted that Kaushalya Devi was the owner of property, the objectors being her sons would be the natural heirs under the provisions of Hindu Succession Act, 1956, and in absence of any declaration granted by competent civil court, that Ram Rati was the owner of the property, or that property was his Benami, the courts below could not have treated the status of defendants to be that of a licensee. The objection under Section 47 was opposed by the heirs of plaintiff, and the same has ultimately been rejected by the trial court. This order has been affirmed in revision, which are under challenge in this petition.
(3.) The orders are assailed primarily on the ground that plea of fraud set up by the applicant has not been examined by the courts below, and that there is a failure on part of the revisional court to exercise jurisdiction vested in him by law. All such facts have otherwise not been examined with reference to the specific plea raised under Section 47.;