SECOND APPEAL No. 543 of 2011 · Madhya Pradesh High Court

whereby the learned lower appellate Court affirmed the order dated 2.5.2011 by which objection of the appellant/objector was rejected by the executing Court in Execution Case No.89- A/1986 x 15/04. The landlord-decree holder filed a suit for ejectment against his tenant Ramprasad in the year 1986, which was decreed and decree for eviction under Section 12(1)(b) of the M.P. Accommodation Control Act, 1961 was passed on 30th April, 1998. During pendency of the proceedings original tenant Ramprasad died, thereafter, sub-tenant Shambhu, who was in possession of the premises was impleded in the suit. Prahlad and Mohanlal (nephews / legal representatives of Ramprasad) were also impleded in the said proceedings. The judgment and decree passed by the lower appellate Court was challenged by Shambhu (sub tenant of Ramprasad) by filing Second Appeal No.369/01. The said second appeal was dismissed by this Court on 30.4.03. The appellant, who is adopted son of tenant Ramprasad executed a Power of Attorney in favour of one Rakesh, son of Shambhu Maharaj on 6.8.2004. On the basis of said Power of Attorney the adopted son of original tenant Ramprasad filed Civil Suit No.18-A/05 for declaration and permanent injunction and also filed an application under Order 39 Rules 1 & 2 CPC. During pendency of the civil suit he also filed objection under Order 21 Rule 97 CPC in execution Case No.89-A/86 x15/04. The said application was rejected on 2

2.5.2011. Against the said order an appeal was filed, which was also dismissed by the impugned order dated 22.9.2011. Learned counsel for the appellant has submitted that after death of Ramprasad, Prahlad and Mohanlal, who were from maternal side of tenant Ramprasad cannot be impleaded as legal representatives of original tenant. It is also submitted that publication was made in local newspaper, whereas the appellant is residing in Sawaimadhopur and, therefore, he could not have any knowledge about the pendency of proceedings. He also submitted that mere publication in local newspaper cannot be treated as proper service and in absence of proper representation on the side of deceased no decree under Section 12(1)(b) could be passed and the Courts below have committed an error in dismissing the application and upholding the stay order in the impugned order dated 22.9.2011. In view of the aforesaid facts & circumstances, on perusal of the impugned order this Court is of the view that against the similar objection a Civil Suit No.18-A/05 was filed by the appellant on 18.7.2005. It is also not in dispute that after death of Ramprasad the decree holder landlord filed an application for impleadment of his nephews and also made a publication in the local newspaper 'Rajasthan Patrika' the appellant knew about the pendency of the proceedings, but he could not file any application for his impleadment. It is also not in dispute that he after filing civil suit raised an objection under Order 21 Rule 95 CPC. In view of above, this Court is of the view that the learned lower appellate Court has not committed any legal error in dismissing the appeal and upholding the order by which his objection was rejected. No substantial question of law arises in this appeal. The appeal filed by the appellant has no merit and is, accordingly, dismissed. 3 (P.K. Jaiswal, J.) rcs*