1. This is an appeal against the decision in R.A. 145 of 1947 48 on the file of the Additional Subordinate Judge, Bangalore reversing that of the second Munsiff, Bangalore in Execution No. 317 of 1946-47.
2. The point for consideration in this appeal is whether Execution Case No. 317 of 1946/47 referred to above was rightly dismissed as barred by tim.e This execution case filed on 27th January 1947 more than 12 years after 27th November 1933 the date of the decree sought to be executed, and more than 3 years after the dismissal of previous Execution Case No. 802 of 1933-34 on 23rd November 1984, is clearly barred both under Section 48, Civil, P.C. as well as under Art. 182, Limitation Act unless it is construed to be continuation of the latter execution case.
3. The short point for consideration is, therefore, whether Execution No. 317 of 1946-47 can be construed to be a continuation of Execution No. 802 of 1933-34. The latter case was dismissed on 23rd November 1934 as decree-holder failed to file a 'verified statement,' but it is now argued that decree-holder had died before the execution application was dismissed and this fact is not denied. It is contended that Execution Case No. 802 of 1933-34 should not have been dismissed and kept pending till decree-holder's legal representative applied to be brought on record and the decision in Sundarabalakdiresa v. Avudai Ammal, A.I.R. (29)_ 1942 Mad. 495: (202 I C. 211) has been relied on. It has been held in that decision that
'where the decree-holder dies pending an execution application the Court has no jurisdiction to pass any order dismissing the execution application. The application ought to be kept on file awaiting for any legal representative to continue it.'
It is contended that Execution No. 802 of 1933-34 was wrongly dismissed and it must be considered that it was dismissed for statistical purposes only and that it can revived by a legal representative of the decree-holder. the decisions reported in 6 Mys. L. J 265. 19 Mys. L. J. 82 and 21 Mys. L. J. 307 support the contention that execution cases dismissed for no fault of decree-holder could be revived even more than 12 years after date of decree.
4. There is, however, no decision of our High Court which supports the contention that an execution application should not be dismissed after a decree-holder dies and his legal representative does not turn up to continue the proceeding on the date of bearing. No decision of any High Court has been brought to our notice that if an execution application is dismissed after decree-holder dies as no one has come forward to proceed with the case, the case can be revived more than three years after the death of the decree-holder and the dismissal of the case and more than 12 years after the date of the decree, The point, therefore, deserves some consideration.
5. The procedure that has to be followed when a party dies in a pending suit is laid down in Order 22, Civil P C. According to it the suit abates unless an application is filed to bring legal representative of the deceased on record within 90 days. The necessity of keeping the case pending till then arises as no fresh suit can be filed on the same cause of action. But on the dismissal of an execution case before the decree is satisfied a fresh execution application can be filed subject to law of limitation. Order 22, Civil P.C. which directs that suits shall abate unless legal representatives of the deceased parties are not brought on record within 90 days is not made applicable to execution cases.
6. Section 146 and Order 21, Rule 16, Civil P.C., enable the legal representatives of a decree-holder or the assignee decree-holders to file fresh execution application within time allowed by law: but neither Order 22, Civil P.C., nor any other provision of law comes in the way of decree-holder assignees, legal representatives of decree-holders or judgment-debtors being brought on record in pending execution cases filed by decree-holders before, as the case may be, the death of decree-holder or judgment debtor before the decree was assigned The decision to the contrary in Palaniappa Chettiar v. Vallianmai Achi, A.I.R. (14) 1927 Mad. 184: (50 Mad.1), was overruled by the Full Bench decision in Venkatachalam v. Ramaswami, A.I.R. (19) 1932 Mad. 73: (55 Mad. 352).
7. Even if there is no provision of law in Civil Procedure Code to bring legal representatives of deceased persons who are parties to execution cases on record it cannot be said that they cannot be brought on record and the rights of parties are defeated by death of one or the other of the parties. As has been often held, Civil Procedure Code is not exhaustive and Section 151, Civil P.C. give power to Courts to do what is needful to prevent injustice. There is however no need to have recourse of Section 151, Civil P.C. Order 21, Rule 16, provides that when a decree ' is transferred by assignment in writing or by operation of law the transferee may apply for execution of the decree to the Court which passed it'. This does not necessarily mean that the legal representative of decree-holder or the assignee decree-holder need file a fresh execution application.
8. the words of Order 21, Rule 16, Civil P.C. are capable of being construed as enabling the transferee of the decree by assignment in writing or by operation of law applying for execution of the decree in the very execution case filed by decree-holder in case such an application is pending. As observed by Anathakrishna Iyer J., in Venktalakshmamma v. Seshagiri Rao, 131 I.C. 610 at p. 616 :(A.I.R. (18) 1931 Mad. 303).
'If the only remedy open to the legal representative of a deceased decree-holder in such a case be to file a fresh execution petition, then fresh pleas of limitation might be open to the judgment-debtor, the intervening period affording him basis for such contention. Attachments which were affected pending the prior execution would prima facie no longer be available when a fresh execution petition is filed. The advantages which a decree-holder has a result of his having filed execution petition, such as the right to share in the proceeds of auction sales held by the same Court after the filling of such execution petition, might not be necessarily available to him on such fresh execution petition. Other disadvantages to the decree-holder's representative also could be really imagined'.
As observed by Reilly J., in the same case at p. 612.
'If an execution petition is in progress and an attachment has been made, and then the judgment debtor dies, according to the principle adopted in Palamiappa Chettiar v. Valliammai Achi, 99 I.C. 627: (A.I.R. (14) 1927 Mad. 184), that petition comes to an end and the attachment must go. The accident that the judgment-debtor has died may, therefore throw a most serious obstacle in the way persons who have come into those execution proceedings for rateable distribution in a proper way may be entirely defeated. And if the decision is pressed to its logical conclusion, when a judgment-debtor dies during the pendency of execution proceedings which have been taken on appeal or second appeal, the result will be that the whole proceedings fall tot he ground and even at that late stages new execution petition has to be started.'
It is observed in the Full Bench case in Venkatachalam v. Ramaswami, A.I.R. (190 1932 Mad. 73 at P. 81: (55 Mad. 352).
'The practice in Indian Courts was always to allow the legal representative of a deceased decree-holder to continue the pending execution petition filed by him by substituting his name in it in the place of the deceased decree-holder and then to proceed with the execution.'
The correctness of his practice was affirmed in the Full Bench decision which held:
'Though Order 22, has no application to execution proceedings, still by reasons of Section 146, and Order 21, Rule 16 the legal representative of a decree-holder who dies during the pendency of an execution petition can be substituted in the execution petition and be allowed to continue it. It is not obligatory on him to file a fresh application.'
Amar Singh v. Commr. of Income-tax, Punjab, 155 I.C, 968: (A.I.R. (21) 1934 Lah.919) and Sailendra Nath v. Surendra Nath : AIR1930Cal614 support the same view.
9. It is thus open to decree holder's legal representative or a decree holder assignee to file a fresh execution application praying for executing of the decree or to apply for continuing the execution case filed by decree-holder before t he decree was transferred by assignment or operation of law. It has, however, to be stated with respect that it is difficult to agree with Somsyaa J. in his observation in Sundarabala. kadiresa v. Avadai Ammal, A.I.R. (29) 1942 Mad. 495: (202 I.C., 211) that 'where the decree-holder dies pending an exaction application the Court has no jurisdiction to pass any order dismissing the execution application. The application ought to be kept on file awaiting for any legal representative to continue it'. No authority has been cited and no reasons are given in the decision itself. A suit is ordered to lie over till the time fixing for filing a legal representative application is over, as in case it is dismissed meanwhile, no fresh suit can be filed. In the case of the death of a decree-holder or assignment of his decree, it is open to legal representatives of decree-holder or decree-holder assignees either to apply in the execution case to continue the execution of the decree or to file a fresh execution application. If he does not care to apply int he execution case for his being brought on record so that execution might proceed, it is not for the Court to keep the case pending for him to do so as he has the other remedy of filing a fresh execution application. This is particularly so when the decree-holder has still time under Section 48 to file a fresh execution application.
10. It may be that when 12 years after date of decree is over, the Court might keep an execution case pending in order to enable a legal representative of decree-holder or decree-holder assignee filing an application. It is neither necessary nor desirable for the Courts to keep execution case pending after death of decree-holders or after assignment of decrees, when the legal representative of decree-holders or assignees of decree-holders do not come forward with an application for continuing the execution proceedings while, they have as in this case the right to file fresh execution applications. By death of decree-holder or by assignment of decree, the execution case does not abate but if the decree-holder or the person to whom his interest is transferred by assignment or by operation of law is not diligent enough to appear before Court and apply for execution to proceed, nothing comes in the way of the Court dismissing the execution case.
11. As observed in Venkatalakshmamma v. Seshagiri Rao, 131 I.C. 610: (A.I.R. (18) 1931 Mad. 303) by Anantha Krishna Iyer J. at p. 617:
'If a plaintiff should not appear on the dat e fixed for the hearing of his suit, then the suit is dismissed. It is not open to him to file a fresh suit except under particular circumstances. His ordinary remedy is to have the old suit restored to the file and to have the relief prayed for therein granted to him in that Suit. But in the case of execution petitions greater latitude has been, for obvious reasons, allowed to a decree-holder'
'A decree holder who does not promptly and expeditiously carry on proceedings in execution but allow his petition to be dismissed because proper steps have not been taken by him is not thereby denied the relief claimed for all time. He is, subject to question of limitation which I am not considering here, entitled to file a fresh execution petition seeking the same relief. As I said there are also other rules of procedure applicable to suits but not applicable to execution petitions.The rules have been recognised by Courts long prior to the enactment of Order 22, Rule 12, in the Code of 1908. It has been laid down that though a decree-holder has just like a plaintiff the right to have the legal representative of the deceased judgment-debtor substituted in the original execution petition and to go on with the same till complete effectual relief is afforded to him in execution he is not bound to do so and that the principle of abatement does not apply to execution petitions. In fact that disability is not cast on decree-holders in respect of execution petitions but decree-holders' legal representatives are given the option, of which they may avail themselves or not in the circumstances'.
12. As observed by Reilly J. in the same case:
'If a suit is going on a Court, the Court is interested in seeing that the suit is disposed of promptly both for the sake of its own business and out of fairness to other parties concerned. It is reasonable that, if a defendant dies and the right to sue survives, the plaintiff should be required under a penalty to make up his mind promptly whether he is going to continue to trouble the Court with that suit. It would be unreasonable that the suit should be left for a very longtime pending on the Court;s file while the plaintiff made up his mind what he was going to do about it having already launched it. But, when we come to execution proceedings, after a decision has been given between the parties and a decree has been made, the Court is not interested in urging the decree-holder to press on with his execution. It matters nothing to the Court if the decree-holder takes the full time allowed by law for his execution proceedings or drop them altogether'.
13. Though a suit has to be ordered to lie over after the death of a party till the time allowed by law for filing an L.R. application has expired, it has to be so done as a fresh suit on the same cause of action cannot be filed. When decree-holder's legal representative or assignee has a right to file a fresh execution application, it cannot be said that there is any necessity for the Court to keep an execution case in which decree holder is dead or has assigned his decree, on file awaiting for any legal representative or assignee to continue, it though in case an application is filed by the latter when the case is still pending it is bound to bring them on record and proceed with the case.
14. Assuming however that the execution case has to be kept on file awaiting a legal representative of deceased decree-holder or assignee decree-holder to continue the application it can only do so till the period of limitation for his filing an application for that purpose expires. Reilly J. observed in Venkatalakshmamma v. Seshagiri Rao, : AIR1981Mad303 :
'I think the correct view is that, if Rules 3 and 4, Order 22, were not there still, if a defendant died and the right to sue survived the plaintiff could bring on record the legal representative of the defendants and we should have to let him do so. Otherwise, we should denying him his legal remedy. But in the absence of those rules he would have three years for doing it under article 181, Limitation Act.'
It is clear that even in the case of execution case, to which order 22, Civil P.C., is not applicable, it follows that it is Art, 181, that is applicable for fixing the time within which an application can be filed by assignee decree-holders or decree-holder's legal representatives to be brought on record and to proceed with the execution. Kalyani Pillai v. Thiruvenkata. swami, 47 M.L.J. 154: (A.I.R., (11) 1924 Mad. 695) is also in authority on the point. It has been observed in the Full Bench decision reported in Venkatachalam v. Ramaswami, A.I.R. (19) 1982 Mad. 73: (55 Mad. 352 F.B.) that the article applicable to cases of this kind is Art. 181. In this case the death of the decree-holder took place prior to the dismissal of execution case No. 802 of 33-34 on 23rd November 1934 and the present execution case No. 317 of 1946-47 filed more than three years after this date is clearly barred under Art. 181. This execution case cannot, therefore, be treated as continuation of execution case No. 802 of 1933-34 No other ground has been urged in the application for holding that the present application is in time. The application was therefore rightly held by the appellate Court as not maintainable.
15. The appeal stands, therefore, dismissed. There will be no order as to costs.
16. Appeal dismissed.