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Shankar Balchand Marwadi Vs. Hiralal Balchand Marwadi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 300 of 1929
Judge
Reported in(1931)33BOMLR858
AppellantShankar Balchand Marwadi
RespondentHiralal Balchand Marwadi
DispositionAppeal dismissed
Excerpt:
.....representatives of a judgment-debtor-continuance of execution proceedings.; an application by a decree-holder to continue execution proceedings against the legal representative of a deceased judgment-debtor may be made in the proceedings pending against the judgment debtor. it need not be by a separate application. such a separate application, if made, is not a fresh application within the meaning of section 48 of the civil procedure code, 1908.; purushottam v. rajbai (1909) i.l.r. 34 bom. 142, s.c. 11 bom. l.r. 1358, followed.;palaniappa chettiar v. valliammai achi (1926) i.l.r. 50 mad. 1, akhoy kumar talukdar v. surendra lal pal (1926) 30 c.w.n. 735 and mirza muhammad sadiq ali khan v sajjad mirza alias munney agha (1927) i.l.r. 3 luc. 126. - section 31(4) (since repealed) :[tarun..........allowed the application.2. it is urged on behalf of the appellant that it was necessary for the decree-holder to bring a separate application for execution against the legal representative of the surety defendant no. 3, and that such an application would be beyond time under section 48 of the civil procedure code, having been made more than twelve years after the date of the decree, and reliance has been placed on the decisions in the cases of palaniappa chettiar v. valliammai achi ilr (1926) mad. 1, akhoy kumar talukdar v. surendra lal pal 30 c.w.n. 735 and mirza muhammad sadiq ali khan v. sajjad mirza alias munney agha ilr (1927) luc. 1263. in palaniappa chettiar v, valliammai achi it was held that the legal representative of a decree-holder, who died during the pendency of an.....
Judgment:

Patkar, J.

1. This is an appeal in execution of the decree in First Appeal No. 243 of 1913, decided on June 21, 1915. The last application for execution was in darkhast No. 1048 of 1925 filed on October 3, 1925, The order in the execution proceedings was confirmed by the High Court on November 20, 1928. Defendant No. 3 was a surety for defendant No. 2 in the original suit, and the High Court confirmed the liability of defendant No. 8 on November 20, 1928. Defendant No. 3 died on January 10, 1929, and the present application was made to continue the execution proceedings against the legal representatives of the surety defendant No. 3. The lower Court allowed the application.

2. It is urged on behalf of the appellant that it was necessary for the decree-holder to bring a separate application for execution against the legal representative of the surety defendant No. 3, and that such an application would be beyond time under Section 48 of the Civil Procedure Code, having been made more than twelve years after the date of the decree, and reliance has been placed on the decisions in the cases of Palaniappa Chettiar v. Valliammai Achi ILR (1926) Mad. 1, Akhoy Kumar Talukdar v. Surendra Lal Pal 30 C.W.N. 735 and Mirza Muhammad Sadiq Ali Khan v. Sajjad Mirza alias Munney Agha ILR (1927) Luc. 126

3. In Palaniappa Chettiar v, Valliammai Achi it was held that the legal representative of a decree-holder, who died during the pendency of an execution petition filed by him, cannot be substituted in his place in the execution petition and be allowed to continue it, and that the question must be decided by reference to the specific terms of the Code of Civil Procedure. The only provision allowing the legal representative of a deceased decree-holder to execute the decree is contained in Order XXI, Rule 16. The case of Palaniappa Chhettiar v. Valliammai Achi related to an application by a legal representative of the decree holder to be brought on the record. The case of Akhoy Kumar Talukdar v. Surendra Lal Pal has no application to the facts of the present case, for, the question turned on the application of Section 73 of the Civil Procedure Code. During the course of the judgment, however, it was observed as follows (p, 737):-

On the death of the applicant for execution it was open to the legal representatives of the deceased decree-holder to apply immediately for carrying on the proceedings in execution of the decree or to apply for fresh execution under Order. 21, Rule 16 of the Code of Civil Procedure.

4. In Mirza Muhammad Sadiq Ali Khan v. Sajjad Mirza alias Munney Agha it was held that there is no rule under which the legal representative of a deceased decree-holder can or should apply merely for substitution of names. The application should be for execution. It was held in that case that the application under Order XXI, Rule 16, was not an application for execution, but was a step in aid of execution. The decision, however, follows the decision of the Allahabad High Court in Baij Nath v. Bam Bharos ILR (1927) All. 509.. It was held by the Full Bench in that case that an application by the heir of the deceased decree-holder was not a fresh application within the meaning of Section 48 of the Civil Procedure Code. In that case the decree-holder in January 1925 applied that the record of the previous execution should be sent to the Collector, and on April 28, 1925, the legal representatives applied that Ram Lal's name might be removed and that the petitioners might be entered in the array of decree-holders, and did not ask for any fresh proceedings, It was observed as follows (p. 514):-

They had to make an application in the usual form of ten columns, because there is no rule of law which enables the legal representative of a deceased decree-holder to apply for mere substitution of names. He must apply, whenever he does apply, for execution of the decree, vide order XXI, Rule 16, of the Code of Civil Procedure. It is clear, therefore, that neither the application of the 28th of January, 1920, nor the application of the 28th of April, 1925, was a 'fresh application' within the meaning of Section 48 of the Code of Civil Procedure.

5. It would follow from these decisions that if the legal representative of a deceased judgment-creditor makes an application to continue the execution proceedings, he must do so not by an application for mere substitution of names but must apply for execution under Order XXI, Rule 16. Such an application is not necessarily a fresh application within the meaning of Section 48 of the Civil Procedure Code. In the present case we are not concerned with an application by a legal representative of a deceased decree-holder, but an application by a decree-holder to continue the execution proceedings against the legal representative of the judgment-debtor, and express provision has been made by the Code for such an application by Section 50 and Order XXI, Rule 22, Section 50 lays down that 'Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.' Such an application to execute the decree against the legal representative need not necessarily be made by a fresh application for execution; but it may be made by an application in the pending darkhast against the deceased judgment-debtor. This view has been accepted by this Court in Purushottam v. Rajbai ILR (1909) 34 Bom. 142, 11 Bom, L.R. 1358, where it was held that when execution proceedings are commenced against a judgment-debtor, they can be continued after his death by substituting the name of the legal representative in place of the deceased judgment-debtor in the application for execution. It is not necessary to file a fresh application under the provisions of Section 235 of the Civil Procedure Code. Though there was no express provision in the old Civil Procedure Code corresponding to Order XXII, Rule 12, it was held by judicial decisions that Sections 361 to 372 of the old Civil Procedure Code were not applicable to execution proceedings.

6. Order XXII, Rule 4, enables the plaintiff in a pending suit to apply for substitution of the name of the legal representative in the place of the deceased defendant. Similarly under Order XXII, Rule 3, the legal representative of a deceased plaintiff can be brought on the record by an application in that behalf. But according to Rule 12 of Order XXII, Rules 3 and 4 of the Order are not applicable to proceedings in execution of the decree. The proper procedure in execution is regulated by Order XXI, Rule 16, in the case of a deceased decree-holder and Order XXI, Rule 22 and Section 50 of the Civil Procedure Code in the case of a deceased judgment-debtor. The principal object in making such -an application is to continue the pending execution proceedings, and, therefore, the application cannot be considered to be a fresh application within the meaning of Section 48 of the Civil Procedure Code. The fresh application contemplated by Section 48 of the Civil Procedure Code is a substantive application for execution and not an ancillary application made with the object of continuing or reviving pending execution proceedings. When the execution of a decree has been suspended through no fault of the decree-holder, he has a right to revive the execution proceedings. See Chhattar Singh v. Kamal Singh ILR (1926) All. 276.

7. We think, therefore, that when an application is made by a decree-holder to continue the proceedings against the legal representative of a deceased judgment-debtor, the application may be made in the pending darkhast against the judgment-debtor and it need not be by a separate application, and that even if a separate application is made by the deceased decree-holder against the representatives of the deceased judgment-debtor it is not a fresh application within the meaning of Section 48 of the Civil Procedure Code.

8. The view taken by the lower Court seems to be right, and this appeal must be dismissed with costs. The costs will be payable to respondent No. 1.

Broomfield, J.

9. The question is whether, when a judgment-debtor dies during the pendency of an execution proceeding, the pending proceeding may be continued against the legal representative of the judgment-debtor, or whether the decree-holder must make a fresh application for execution which will be time barred under Section 48 of the Code if not brought within twelve years of the date of the decree. In the case of a suit the provisions of Order XXII, Rule 4, would apply, but, under Rule 12 of Order XXII, Rule 4 has no application to execution proceedings. It has, therefore, been argued on behalf of the appellant, i.e., the son of the judgment-debtor, that in the absence of any provision for the substitution of names of legal representatives in execution, it is necessary for the decree-holder to make a fresh application, which, in the present case, it is contended, would be barred by limitation, For this proposition reliance has mainly been placed on the decision in Palaniappa Chettiar v. Valliammai Achi ILR (1926) Mad. 1. It was held there that the legal representative of a decree-holder, who died during the pendency of an execution petition filed by him, could not be substituted in his place in the execution petition and be allowed to continue it. That case was complicated by the fact that there had been a transfer of the decree, and the provisions of Order XXI, Rule 16, and Order XXII, Rule 10, had to be considered, and apart from that it is not an express authority on the point which we have to decide in the present case. There is no reason to dissent from the dictum in that case that the question what is to be done when a party to execution proceedings has died must be answered by reference to the specific terms of the Code of Civil Procedure. In the case of the death of the judgment-debtor the specific terms of the Code applicable to the case will be Section 50 and Order XXI, Rule 22. Both Section 50 and Order XXI, Rule 22, contemplate an application for the execution of the decree. But, as far as I can see, there is no reason why the application there referred to must necessarily be an application made for the first time and may not include an application made in continuation of a proceeding already pending.

10. The case of Mirza Muhammad Sadiq Ali Khan v. Sajjad Mirza alias Munney Agha ILR (1927) Luc. 126, also relied upon on behalf of the appellant, lays down that as there is no rule under which the legal representative of a deceased decree-holder can apply merely for substitution of names, the proper application to be made is an application for execution. But the Court merely followed Baij Nath v. Ram Bharos ILR(1927) All. 509, and what was held in that case was that an application that the heir of the deceased decree-holder might be brought on record and that execution might be proceeded with was not to be regarded as a fresh application within the meaning of Section 48, but that it might be regarded as a continuation of the proceedings already pending, and that there was no necessity for a fresh application.

11. Purushottam v. Rajbai ILR(1909) 34 Bom. 142, 11 Bom, L.R. 1358 is the authority relied upon for the view taken by the trial Court, viz., that execution proceedings can be continued against the legal representative of a deceased judgment-debtor without the necessity for a fresh application.

12. It is true that this was a case under the old Civil Procedure Code, but it appears to be still good law. An attempt was made to distinguish it on the ground that there has been some modification in the language of Section 50, corresponding to the old Section 234, and on the ground that Order XXII, Rule 12, is a new provision. We have compared the language of Section 50 with that of the old section, and it does not appear to us that the changes made make any material difference as regards the point now before us. Order XXII, Rule 12, is no doubt a new provision, but it only gives effect to the law as previously laid down by judicial decisions and as recognised even in Purushottam v. Rajbai.

13. I agree that the appeal should be dismissed with costs.


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