Bhaskar Bhattacharya, J.@mdashThis revisional application under Article 227 of the Constitution of India is at. the instance of a third party in a proceeding for execution and is directed against order dated April 9, 1998 passed by the learned Additional District Judge, 6th Court, Alipore in Civil Revision Case No. 188 of 1997 thereby setting aside Order No. 43 dated December 21, 1996 passed by the learned Munsif, 3rd Additional Court, Alipore in Misc. Case No. 54 of 1994 arising out of Title Execution Case No. 28 of 1994.
2. The opposite party No. 1 filed a suit for eviction against the opposite parties No. 2 and 3 and their father viz. Kirtibas. Kar on the allegation that the aforesaid three persons forcibly trespassed into the suit property.
3. During the pendency of the aforesaid suit, the said Kirtibas Kar, the Defendant No. 1 therein died intestate leaving three sons, (including the opposite parties No. 2 and 3) three daughters and his widow.
4. Since two of the heirs of Kirtibas Kar were already on record, the learned trial Judge permitted the opposite party No. 1 to proceed with the aforesaid suit against the opposite parties No. 2 and 3 after recording the death of Kirtibas Kar.
5. Ultimately, the said suit was decreed and an appeal preferred by the opposite parties No. 2 and 3 against such decree was also dismissed.
6. The opposite party No. 1 put the aforesaid decree into execution thereby giving rise to the aforesaid Title Execution Case No. 28 of 1994.
7. In the said execution case, the present Petitioner, the widow of the deceased Kirtibas Kar, filed an application describing the same as one u/s 47 of the CPC thereby claiming that her husband, Kirtibas was a tenant in respect of the suit property at a monthly rental of Rs. 32.00 a month and the decree obtained by the opposite party No. 1 against opposite parties No. 2 and 3 were not binding upon her inasmuch as on the death of Kirtibas only two out of seven heirs who were already on record were proceeded with.
8. On the application of the opposite party No. 1 the learned executing court heard the question of maintainability of such application as preliminary issue and by Order No. 43 dated December 21, 1996 disposed of such application holding that the application filed by the Petitioner was prima facie maintainable and as such she has right to lead evidence in support of her application. Accordingly the learned executing court fixed February 1, 1997 for evidence.
9. Being dissatisfied, the apposite party No. 1 preferred a revisional application u/s 115A of the CPC before the learned District Judge which was ultimately heard by the learned Additional District Judge, 6th Court, Alipore and the learned revisional court below by the order impugned has allowed such application holding that the application filed by the Petitioner u/s 47 of the CPC was not maintainable. In arriving at such conclusion the learned revisional court below held that Kirtibas Kar having been found to be a trespasser, the right to sue did not survive after his death as trespasser and as the plea of his widow that the decree for eviction was not binding upon her for non-inclusion of her name as legal representative cannot be accepted.
10. Being dissatisfied, this application under Article 227 of the Constitution of India has been filed.
11. Mr. Mukherjee, the learned advocate appearing in support of the application contends that the learned revisional court below acted illegally and with material irregularity in rejecting the application of his client without affording her any right to place evidence in support of her case. According to Mr. Mukherjee if the case made out by his client is found to be true in that event the application is bound to succeed. Mr. Mukherjee further contends that the finding of the learned trial Judge while passing the decree that Kirtibas was not a tenant but a trespasser is not binding upon his client inasmuch as she was not a party of such proceeding.
12. Mr. Sengupta, the learned senior advocate appearing on behalf of the opposite party No. 1 has on the other hand supported the order of the revisional court below and as contended that Kirtibas being a trespasser, the right to sue did not survive upon his legal heirs. Mr. Sengupta further contends that two of the heirs of Kirtibas were already on record and as such no question of abatement of such suit arises after the death of Kirtibas. Mr. Sengupta further contends that at any rate, the estate of Kirtibas, was sufficiently represented by two sons and as such the finding of the learned trial Judge which was upheld by the learned first appellate court is binding upon Petitioner.
13. There is no dispute with the proposition of law that on the death of a Defendant in a suit if some of his heirs are already on record either as Plaintiff or as Defendant, the suit cannot abate. But the law is equally settled that even in such case the names of the heirs should be brought on record. this Court is quite alive to the decision of the Apex Court in the case of
14. However, after making the aforesaid observation, the Apex Court at para. 12 of the said judgment made the following observation:
The next question is about the effect of the Appellant having omitted to include two of the heirs of Shyam Sundari, a son and a daughter who admittedly had an interest in the property, and the effect of this matter being brought to the notice of the court before the hearing of the appeal. The decisions to which we have referred as well as others have laid down and we consider this is also correct, when once it is brought to the notice of the court hearing the appeal that some of the legal representatives of the deceased Respondent have not been brought on record and the Appellant is thus made aware of this default on his part, it would be his duty to bring these others on record so that the appeal-could be properly constituted. In other words, if the Appellant would succeed in the appeal it would be necessary for him to bring on record these other representatives whom he has omitted to implead originally.....
15. Therefore what has been laid down in the aforesaid decision is that if one of the heirs of the deceased Defendant is already on record, the proceeding will not abate for not bringing on record all the heirs within the period of limitation. But the left out heirs have right to be impleaded in the said proceedings.
16. Thus, it cannot be argued for a moment that the said suit had abated but at the same time we must not forget that the claim put forward by the present Petitioner who was not made party in the proceeding after the death of her husband is that her husband was a tenant in respect of the property and she has a right to place materials before court in support of her plea.
17. Thus, in the instant case the position of the Petitioner is that of a third party to a decree and she having claimed inheritance of tenancy right from her husband, in my opinion, it is the duty of the learned executing court to give her an opportunity to prove her case before she is dispossessed from the suit property in execution of a decree where she is not mac ''a party.
18. It will not be out of place to mention here that in this case out of seven legal representatives of the deceased Defendant No. 1 only two were on record- In the instant proceeding the Petitioner is entitled! to take the plea of fraud or collusion in not bringing the other heirs of Kirtibas on record.
19. Thus, the learned executing court having decided not to reject the application filed by the Petitioner summarily but to afford her an opportunity to establish her case before she is evicted in an execution of a decree where she is not a party, the learned revisional court below acted illegally and with material irregularity, in setting aside the said order passed by the learned executing court.
20. In my opinion, the learned revisional court below was absolutely wrong in holding that in a suit for eviction of a trespasser right to sue does not survive upon his legal representative. The general Rule is that all rights of action and of demands whatsoever existing in favorers against a person at the time of his death survives to or against his legal representatives. Only exception to the aforesaid proposition is mentioned in Section 306 of the Indian Succession Act, 1925. A suit for eviction of an alleged trespasser is not such an exception enumerated in the aforesaid Section 306 of the Indian Succession Act, Therefore, I hold that on the death of an alleged trespasser right to sue survives upon his legal heirs.
21. Mr. Sengupta tried to convince this Court that the dispute raised by the Petitioner in her application does not strictly come within the purview of Section 47 of the Code of Civil Procedure. Without expressing any final opinion on that point this much can be said without hesitation that even if the submission of Mr. Sengupta is accepted the case of the Petitioner at least comes under the purview of Order 21 Rule 97 of the CPC and in such a case the learned executing court is entitled to adjudicate such claim after taking evidence before driving out a third party in execution of a decree for eviction where such a person is not a party. Simply because an application has been captioned under a wrong section does not deprive the learned executing court of a right to exercise an appropriate power when the learned executing court has the authority to exercise such power. Therefore, the aforesaid submission put forward by Mr. Sengupta is of no avail to his client.
22. Thus I find that the learned revisional court below acted illegally and with material irregularity in setting aside the order of the learned executing court thereby depriving the Petitioner of the opportunity of proving her case before being evicted in execution of a decree where she is not a party.
23. The revisional application thus succeeds. The order passed by the learned revisional court below is set aside and the learned executing court is directed to disposed of the application filed by the Petitioner in accordance with law after giving opportunities to both the parties to lead evidence and counter evidence in support of their respective claims. The proceeding must be disposed of within February, 1999.
No costs.
