Rakesh Kumar Jain, J. - (1.) A preliminary objection has been raised by counsel for respondents No. 2 and 3 as to "whether an application either under Order 22 Rules 3 or 4 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") could be filed in the execution proceedings in view of Order 22 Rule 12 of the CPC"? The brief facts of the case are that one Kartar Singh had filed a suit for recovery of Rs. 49,770/ - against Manjit Singh which was decreed on 15.12.2007 for Rs. 38,750/ - along with interest @ 1% per month w.e.f. 01.06.2004 till the date of decree and with future interest @ 6% per annum from the date of decree till realization. The first appeal filed by Manjit Singh was dismissed on 24.03.2009 and during the pendency of the second appeal bearing RSA No. 4541 of 2009, the decree -holder Kartar Singh died on 10.01.2010. Jasminder Singh Kular, Jaswinder Kaur and Mohinder Pal Kaur filed an application bearing CM No. 858 -C of 2011 for impleading them as legal heirs of Kartar Singh which was allowed, subject to all just exceptions for the purpose of the appeal.
(2.) THE petitioners also filed application bearing CM No. 9801 -C of 2011 under Order 22 Rule 4 of the C.P.C. alleging that though Kartar Singh left behind a son and two daughters, referred to above, but he had also executed a Will dated 29.12.2009, bequeathing his all immovable and moveable properties in favor of his son Jasminder Singh Kular and grandsons Tajinder Singh Kular and Diamond Kular. The RSA No. 4541 of 2009 was dismissed on 29.08.2011 on the basis of a compromise in which the following order was recorded by this Court: - "At the very outset, learned counsel for appellant intends to withdraw the instant appeal on account of compromise between the parties. Learned counsel for respondent did not raise any objection, in this relevant connection. In this view of the matter, the present appeal is dismissed. Needless to mention that since the parties have compromised the matter, so, the execution petition would naturally become infructuous as well." Thereafter, Mohinder Pal Kaur (daughter of Kartar Singh) filed another application bearing CM No. 13927 -C of 2011 in the second appeal bearing RSA No. 4541 of 2009 under Order 41 Rule 21 read with Section 151 of the C.P.C. for re -calling the order dated 29.08.2011 by which the second appeal was disposed of. However, the said application was dismissed on 08.12.2011.
(3.) THE petitioners filed another application bearing CM No. 8732 -C of 2014 in CM No. 9801 -C of 2011 in RSA No. 4541 of 2009 for disposal of CM No. 9801 -C of 2011 by which they also wanted to be impleaded as legal heirs of deceased Kartar Singh on the basis of the Will. The said application was dismissed as withdrawn on 25.07.2014 with the following order: - "At the very outset, learned counsel intends to withdraw the instant petition to enable the applicant -respondent to move a fresh application for impleading the LRs. of deceased Kartar Singh (respondent) before the Executing Court. Dismissed as withdrawn with the aforesaid liberty, as prayed for. Needless to mention, in case, the applicant moves such application, the same would be decided by the concerned court expeditiously and in accordance with law.";