- (1.) In this revision petition filed under Article 227 of the Constitution of India, legal representatives of Gura Singh-Judgment Debtor (JD) No.1 have assailed order dated 12.02.2011 Annexure P-1 passed by executing Court i.e. learned Civil Judge (Junior Division), Fazilka thereby dismissing objection petition Annexure P-3 filed by the petitioners in the executing Court.
(2.) Petitioners alleged in their objection petition that Gura Singh defendant No.1 died during pendency of the suit on 15.04.2008 and counsel for defendant No.1 brought this fact on record but even thereafter, respondent No.1 -plaintiff/decree holder failed to implead legal representatives of Gura Singh-defendant No.1 and, therefore, judgment and decree dated 13.01.2009 Annexure P-2 passed ex parte against dead person is null and void and the suit stood abated. Learned executing Court vide impugned order Annexure P-1 dismissed the objection petition filed by the petitioners, who have filed this revision petition to challenge the said order.
(3.) I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners reiterated the contention that the decree sought to be executed was passed against dead person and is, therefore, nullity and the suit stood abated against defendant No.1 on his death as his legal representatives were not impleaded. The contention cannot be accepted. This Court has made amendment in Order 22 Rule 4 of the Code of Civil Procedure (in short, CPC). As per amendment made by this Court, sub-rules (3) and (4) of Order 22 Rule 4 CPC are reproduced hereunder: "(3) where within the time limited by law no application is made under sub rule (1) the suit shall not abate as against the deceased-Defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place. (4) if a decree has been passed against a deceaseddefendant a person claiming to be his legal representative may apply for setting aside the decree qua him and if it is proved that he was not aware of the suit or that he had not intentionally failed to make an application to bring himself on the record, the Court shall set aside the decree upon such terms as to costs or otherwise as it thinks fit.";