Vineet Kothari, J. - (1.) THIS first appeal has been filed by the appellants plaintiffs against the order of learned Additional District & Sessions Judge, No.2, Bikaner in Civil Original Case No.34/1998 - Peera Ram & Ors. Vs. Ram Das, whereby the suit filed by the appellants for declaration has been dismissed. None appears on behalf of appellants -plaintiffs, though name of Mr. Kishan Lal, Advocate has been shown in the cause list. who had initially appeared before this Court on 26.02.2003 at the time of issuing notices to the respondents.
(2.) MR . Manoj Bhandari, learned counsel for the respondents -defendants submits that in execution of previous decree dated 07.01.1982 in Civil Original Suit No.207/1971 - Ramdas Vs. Peera Ram, which has been impugned in the present suit No.34/1998 -Peera Ram & Ors. Vs. Ram Das, the possession of the suit property, a residential house, situated at Bagdiyon Mohalla, Bikaner, has already been given to the plaintiff -decree holders i.e. the legal heirs of late Sh. Ram Dass S/o Chela Bhiv Das. He further submits that objections raised by Shiv Prakash and other, were also dismissed up to Hon'ble Supreme Court and in order to substantiate the aforesaid fact, he has placed on record copy of the order dated 19.11.2007 passed by Hon'ble Supreme Court in SLP No.11310/2007 arising out of judgment and order dated 30.05.2007 passed by coordinate bench of this Court [Jaipur Bench] in SBCWP No.2754/2007 - Sheo Prakash & Anr. Vs. Vishnu & Ors. The order passed by the Hon'ble Supreme Court dismissing the Special Leave to Appeal filed by Sheo Prakash and others is quoted herein below: The petitioners are third parties to the execution proceedings. The original plaintiff filed a suit for eviction and the same was allowed. Petitioners, who are the heirs and legal representatives of the defendant -tenant, filed an application purported to be under Order 21 Rule 97 of the Code of Civil Procedure. Indisputably, such a proceeding is treated to a suit for all intent and purport. The decree -holder died on 21.2.2002. His heirs and legal representatives were brought on record in the said proceeding. The suit, therefore, abated in terms of Order 22 Rule 4 of the C.P.C. Neither any application for setting aside the abatement nor any application for condonation of delay was filed. An application purported to be under Section 151 of C.P.C. and Order 1 Rule 10 of C.P.C. was filed for impleadment of the petitioners which, if allowed, would mean setting aside the order dated 25.11.2006. the said application having been dismissed by the learned executing Court, a writ petition was filed by the petitioners. By reason of the impugned judgment the said writ petition has also been dismissed. The learned executing Court as also the High Court, in our opinion, have correctly arrived at the finding that the proceedings initiated by the petitioners being one under Order 21 Rule 97 of the C.P.C., the provisions of Order 22 Rule 3 shall apply. As the said proceeding abated automatically on the expiry of 90 days from the date of death of the decree -holder, application under Section 151 and Order 1 Rule 10 of the C.P.C. was not maintainable. This special leave petition is, hence, dismissed.
(3.) THIS Court while passing the order dated 27.07.2012 has also observed that the appeal is likely to be finally decided on 01.08.2012, as on that date, nobody had put -in appearance on behalf of appellants. The said order is also quoted herein below: - Office objection over -ruled. For the reasons given in the application under Section 5 of the Limitation Act for condonation of delay of 35 days in filing the present first appeal, the same is condoned. Learned counsel Mr. Manoj Bhandari appears on behalf of all the respondents. None has appeared for appellant, though name of Mr. Kishan Lal, Advocate is shown in cause list. Learned counsel Mr. Manoj Bhandari prays for short adjournment to verify the fact as to whether the decree dated 07.01.1982 for eviction of the present appellant has been executed or not The present suit was filed by the judgment debtors against the eviction decree dated 07.01.1982 by Peera Ram and others seeking declaration of decree dated 07.01.1982 as nullity as allegedly having been obtained by fraud. However, the suit has been dismissed by the learned court below of Additional District Judge, No.2, Bikaner on 20.02.2002. The suit itself was filed in the year 1998 and was numbered as 34/98. The present first appeal is directed against that judgment dated 20.02.2002. The present appellants, prima facie, appear to have occupied forcibly the suit premises in question - a residential house and have filed the present suit not only after much lapse of the period of decree dated 07.01.1982 in the year 1998, but the present first appeal itself against the judgment and decree 20.02.2002 has now come up before this Court after 10 years only in the year 2012 and that too on defects side. That appears to be strategy on the part of appellant - Peera Ram to just prolong the matter. Even the counsel for the appellant, Mr. Kishan Lal is not present, though the matter is listed at S.No.1 in the cause list. List the appeal for final disposal at admission stage on 01.08.2012. Today also, none has appeared on behalf of appellants plaintiffs.;