1. This appeal involves two questions of law one of which is of some importance.
2. The plaintiff' obtained a decree against the defendants and in execution of that decree certain property was attached and put up for sale. Before the sale was confirmed the judgment-creditor and the judgment-debtors came to an arrangement and they made a joint application to the Court by which they asked that defendant No. 1 having agreed to pay the whole of the decretal amount together with interest and costs on or before December 29, 1930, the confirmation of the Court sale which took place on July 4, 1929, should be held over until December 29, 1930, in case the defendants paid up that day. If the defendants did not pay, the sale should be confirmed without further delay. The learned Subordinate Judge on this passed an order, dated February 20, 1930, which is set out in the judgment of the lower Court. The order is as follows :-
Parties say that they have coma to a compromise understanding in respect of the claim in the Darkhast. In pursuance of that understanding plaintiff chooses not to press for the further continuance of the Darkhast. It is said that defendant has agreed to pay up the amount due within one year failing which the sale already made has to be confirmed without demur. On that understanding the Darkhast is allowed to be withdrawn by the plaintiff decree-holder. If defendant fails to pay up money as provided, plaintiff to be at liberty to apply for confirmation of the sale in pursuance of the compromise understanding, and the Court will see to the order of the kind being passed later. For the present the Darkhast is allowed to be withdrawn.
3. The judgment-debtor did not pay and therefore the decree-holder applied to the Court asking the Court to take action conformably to the order passed on February 20, 1930, and for confirmation of the sale. The opponents contended that the darkhast having already been withdrawn the only remedy of the judgment-creditor was to present a fresh darkhast. But that contention was overruled by the lower Court on the authority of certain cases which have been quoted and the application was allowed. The order was: 'Darkhast No. 535 of 1927 to be sent to the Collector for further action.' The judgment-debtor has appealed.
4. It has been contended that this application by the parties does not amount to an adjustment, that it has not been recorded, and that the only order which the Court had passed is for the withdrawal of the darkhast. There is, therefore, no darkhast which can be proceeded with, and the only remedy of the judgment-creditor is to present a fresh darkhast. Now if the application made by the parties and the order be read, it will be seen that the parties had arrived at an adjustment by which time was given to the judgment-debtor to pay, and if he did not pay, the sale which already had taken place was to be confirmed without hearing any objection on his part. Order XXIII, Rule 4, Civil Procedure Code, does not apply to execution proceedings, but I see no reason why this should not be regarded as an adjustment under Order XXIII, Rule 2, and as no form is provided in which an adjustment should be recorded, the order which has been passed by the Court on the application made by the parties would be a sufficient compliance with the law. Unfortunately the order is not so well expressed as it might be. If it is read as a whole, it is quite clear that what the learned Subordinate Judge meant was that the whole darkhast should stand over until the payment was made by the judgment-debtor. After setting out the terms agreed between the parties the order goes on to say :-
On that understanding the darkhast is allowed to be withdrawn by the plaintiff dacree-holder. If defendant fails to pay up money as provided, plaintiff to be at liberty to apply for confirmation of the sale in pursuance of the compromise understanding, and the Court will see to the order of the kind being passed later. For the present the Darkhast is allowed to be withdrawn.
5. Now a darkhast cannot be withdrawn 'for the present'. It must be either withdrawn altogether or not at all. Obviously what the learned Subordinate Judge meant was that the proceedings in the darkhast should be stayed and the matter kept in abeyance until the expiry of the period agreed upon between the parties, and it is clear that it was not contemplated that further proceedings had to be taken by instituting a fresh darkhast. All that was necessary was that in the event of the terms agreed upon between the parties not being fulfilled by the judgment-debtor the order of confirmation of the sale should follow immediately on the application by the decree-holder. It has been argued by the learned advocate for the appellant that he would have no case if the learned Subordinate Judge had said that the sale would be confirmed unless the judgment-debtor pays within the date mentioned in the application. There can be no doubt as to what the intention of the Subordinate Judge was, and because he has not expressed himself so accurately as he might have done, that is no ground for holding that the darkhast in which this application was made has ceased to exist and ordering the decree-holder to file a fresh darkhast. The cases which have been quoted by the learned Subordinate Judge, Venkatrav Bapu v. Bijesing Vithalsing I.L.R. (1885) Bom. 108 Chintaman Damodar Agashe v. Balshastri I.L.R. (1891) Bom. 294 ; Mungul Pershad Dichit v. Grija Kant Lahiri I.L.R. (1881) Cal. 51 Qamar-ud-din Ahmad v. Jawahir Lal I.L.R. (1905) All. 334 and Mujib-ullah v. Umed Bibi I.L.R. (1908) All. 499 are not precisely similar in their circumstances. But they show that a fresh application is not necessary tinder all the circumstances. Mungul Pershad Dichit v. Grija Kant Lahiri, which is a Privy Council ease, lays down that
where a sale of attached property is stayed by a Court upon the application of the judgment-debtor, on condition of the attachment remaining in force, the subsequent striking off of such application from the file of the Court does not affect the rights of the decree-holder.
6. That was a case in which the darkhast had been struck off and obviously the intention of the learned Subordinate Judge who passed the order in the present case was to keep the darkhast in abeyance and to resume the proceedings from the point where they had been left off if the judgment-debtor failed to pay. So far as the first point is concerned, therefore, I have no doubt that the view of the lower Court is correct.
7. A second point, however, has arisen since the filing of this appeal, which has been argued at some length, and is of considerable importance. It may be said that this point does not strictly arise on the judgment of the lower Court, but in the circumstances it is necessary for us to deal with it. The decree-holder died during the pendency of the appeal proceedings, and although we are not in a position to' know what has been done by his heirs and as the papers are here very probably nothing has been done, it will be necessary for the heir or the legal representative of the decree holder to proceed in the matter. The point taken is that as Order XXI, Rule 3, Civil Procedure Code, does not apply to execution proceedings it is not open to the heirs of the deceased decree-holder to have their names substituted for his and continue the execution proceedings against the judgment-debtors. This is the view which has been expressed by Sir Dinshah Mulla in the Ninth Edition of his Civil Procedure Code in the note on Order XXII, Rule 12, and that view is founded upon the decision of the Madras High Court in Palaniappa Chettiar v. Valliamai Achi I.L.R. (1926) Mad. 1 and of the Allahabad High Court in Baij Nath v. Ram Bharos I.L.R. (1927) All. 509 So far as the Allahabad High Court is concerned all that the judgment says is that there is no rule of law which enables a legal representative of the deceased decree-holder to apply for mere substitution of names and that he must apply, whenever he does apply, for execution of the decree under Order XXI, Rule 16, of the Code of Civil Procedure. But at the same time the Court held that neither the application sent by the deceased judgment-creditor dated January 28, 1925, nor the application dated April 28, 1925, by his sons that they might be brought on the record was a 'fresh application' within the meaning of Section 48 of the Code of Civil Procedure. Palaniappa v. Valliamai Achi lays down 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. The question must be decided by reference to the specific terms of the Code of Civil Procedure and not on the general principle. It is hardly necessary to point out that the effect of this interpretation is to penalise the heirs of the deceased judgment-creditor for what is not their fault. Some of the cases which have been quoted are eases in which the fresh application under Order XXI, Rule 16, Civil Procedure Code, was likely to be barred by limitation. In a case like the present where execution proceedings have lasted a long time and had practically reached their termination it would be a great hardship if they had to be commenced de novo by a fresh application and if the heir of the deceased judgment-creditor could not apply to be placed on the record to continue the proceedings from the point where they stood at the death of the judgment-creditor.
8. The matter, however, has been reconsidered by a Full Bench of the Madras High Court in a recent case of Venkatachalam Chetti v. Ramaswamy Servai I.L.R. (1931) Mad. 352 The whole of the case-law there has been reviewed exhaustively and it has been held that the legal representative of a deceased decree-holder who died during the pendency of an execution petition filed by him could be substituted in his place in the execution petition and be allowed to continue it, and the case of Palaniappa Chettiar v. Valliamai Achi has been overruled. It would appear that the general principle in this Court has been to allow the heir of the deceased judgment-creditor or the judgment-debtor to be brought on the record. There is no ruling of this Court since the introduction of the new Civil Procedure Code. The latest case on the point is Purushottam v. Rajbai I.L.R. (1909) Bom. 142 11 Bom. L.R. 1358 which is under the old Code, and it has been argued by the learned advocate for the appellant that the introduction of Rule 12 of Order XXII appearing for the first time in the new Code renders those Bombay decisions no longer valid. However that may be, it is not necessary for me to repeat the arguments, which have been set out at very great length in Venkatachalam Chetti v. Ramaswamy Servai. But I may say with respect that I agree with the view which has been taken by the full Bench that the legal representative of a deceased decree-holder who died during the pendency of an execution petition could be substituted in his place and be allowed to continue the proceedings. Therefore, it would be open to the representative of the deceased decree-holder in this case to continue the proceedings from the point where they terminated at the date of agreement between the deceased judgment-creditor and the deceased judgment-debtor. The form of the order made by the lower Court is not so well expressed as it might be. But there can be no doubt as to what the intention of the Court was regarding the case. There is no reason why the proceedings should commence de novo instead of going on from the point at which they were suspended by virtue of the arrangement between the parties.
9. The decree of the lower Court will, therefore, be confirmed, and the appeal dismissed with costs.
10. I agree on both points. The plaintiff obtained a decree against the defendant and in excution had his house put for sale and the sale was actually effected. The defendant then objected to it under Order XXI, Rule 90. The parties came to terms and it was agreed between them that the plaintiff should give the defendant time to pay the debt and that the defendant should give up his objection to the validity of the sale. This agreement was embodied in a joint application to the Court and the proceedings for the time came to an end The defendant failed to carry out the agreement, the plaintiff was then at liberty to apply for confirmation of the sale and the defendant was not at liberty to raise any objection to the validity of the sale. The only difficulty arises out of the inartistic wording of the final order of the learned Subordinate Judge. He has written 'For the present the darkhast is allowed to be withdrawn.' What he must have meant was that the execution of the darkhast was postponed. The objection made by the defendant that the darkhast having been withdrawn cannot be reopened has, therefore, no force.
11. A second question arises owing to the death of the judgment-creditor (plaintiff) after the decision of the learned Subordinate Judge. It is argued on behalf of the judgment-debtor (defendant) that his legal representative cannot now be brought on the record and that the only course open to him is to file a fresh darkhast. That is the view taken by the Madras High Court in the case of Palaniappa Chettiar v. Valliamai Achi I.L.R. (1926) Mad. 1 But a contrary and a more liberal view has been taken by a full bench of the same Court in Venkatachalam Chetti v. Ramaswamy Served I.L.R. (1931) Mad. 352 I agree with my learned brother that when there is a choice between two interpretations of a rule of procedure the more beneficial interpretation must be adopted, especially when the adoption of the other might lead in many cases to great injustice. Of course were there definite prohibition in the Code the question of justice or injustice would be irrelevant. But there is no definite prohibition. It is merely a question of interpretation, and we are, therefore, justified in adopting the full bench decision of the Madras High Court in Venkatachalam Chetti v. Ramaswamy Servai.