1. Vadilal Maganlal, the father of the respondent, obtained a decree against the appellant and brought a darkhast in execution on November 11, 1929. During the pendency of the darkhast he died on June 12, 1930. His heir and legal representative, the respondent Kacharabhai Vadilal, applied to be brought on the record to continue the darkhast proceedings. The judgment-debtor, appellant, opposed, but was unsuccessful. The learned Subordinate Judge allowed the heir to proceed with the darkhast. The judgment-debtor appeals.
2. The appellant relies on Order XXI, Rule 16, and the decision of the Madras High Court in Palaniappa Chettiar v. Valliammai Achi ILR (1926) Mad. 1
3. The respondent invites our attention to a recent decision in Sailendra Nath Ghose v. Surendra Nath De 34 C.W.N. 437 and the observations of their Lordships of the Privy Council in Jang Bahadur v. Bank of Upper India, Ld. (1928) L.R. 55 IndAp 227 : 30 Bom, L.R. 1373 Cases such as Ganpaya v. Krishnappa : AIR1924Bom394 , Raghunath v, Gangaram : AIR1923Bom404 , and Bhagwan Das v. Jugul Kishore ILR (1920) All. 570 deal with the case of a deceased judgment-debtor, which stands on a different footing. If, as in the last case, for instance, the property belonging to the judgment-debtor was attached and he dies subsequent to the attachment, execution might proceed. But when, as here, the decree-holder dies, we prefer the reasoning and the conclusion of the Madras High Court in Palaniappa Chettiar v. Valliammai Achi.
4. Under Order XXI, Rule 16, an application to the Court which passed the decree is necessary before the heir can apply, assuming that he can be called a transferee by operation of law. In the case of an ordinary transferee, this Court, in Raghunath v. Gungaram, held an application under Order XXI, Rule 16, necessary. It is difficult to differentiate the case of an ordinary transferee by assignment in writing from an heir and transferee by operation of law, the same particularly when Order XXII, Rule 10, expressly excludes the operation of provisions such as Rules 3 and 4 of that Order. But, as pointed out by the Calcutta High Court in Sailendra Nath Ghose v. Surendra Nath Be, the law does not expressly forbid the continuance by the heir of the same execution proceedings and compel a resort by him to a separate proceeding. All that the law requires is an application to the Court passing the decree and an order under Order XXI, Rule 16. Provided he obtains such an order, it is open to him, in our opinion, to continue the same darkhast.
5. In the present case the respondent had actually given such an application, but the trial Court thought it was unnecessary in the view which it took. It appears that the executing Court was the Joint Subordinate Judge, who was a Judge of the same First Class Court which passed the decree.
6. For these reasons, we are of opinion that a reasonable time such as three months should be given to the respondent to obtain the necessary order under Order XXI, Rule 16, from the Court which passed the decree and to continue the present darkhast, if he so wishes. On the production of such an order the execution will proceed in the present darkhast on the merits and in accordance with law. Failing such production within three months of the record reaching the executing Court, the darkhast will stand dismissed without prejudice to the decree-holder's application in any other darkhast.
7. As the objection is, at the most, technical in the view we have taken, we order each party to pay his own costs throughout.