- (1.) The order of refusal to stay execution proceeding during the pendency of an application filed under Order 21 Rule 97 to 101 read with Section 47 of the Code of Civil Procedure is the subject-matter of challenge in this revisional application.
(2.) The petitioner resisted the execution of an ex parte decree by filing the said application on the ground that the said decree was obtained against a dead person and by practising fraud upon the Court. It was alleged that the plaintiffs with the help of their recorded lawyer illegally proceeded with the suit against the wishes of the legal heirs of the defendant since deceased and obtained an ex parte decree in their favour without taking any steps for substitution of the legal representatives on record although the defendant expired on 21st August, 2007 almost immediately after filing of the suit. The applicants wanted to become a party in the ejectment suit by filing an application under Order 1 Rule 10 of the Code of Civil Procedure, but the said application was rejected on 14th March, 2008 when the suit had already abated.
(3.) The said decree by reason of the aforesaid is a nullity and cannot affect the right, title and interest of the applicant/petitioner. The applicant/petitioner claimed to be a tenant under erstwhile Mohammedan owners. The decreeholders, on the basis of such void decree, are trying to develop the said land against the provisions of law by illegal means. It was on such facts, an application was filed under Section 47 read with Order 21 Rule 97 of the Code of Civil Procedure.;