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C. Deva Sigamani Mudaliar and ors. Vs. Venkatasami and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberRegular Appeal Nos. 60 and 61 of 1953
Judge
Reported inAIR1959Kant41; AIR1959Mys41; (1958)36MysLJ411
ActsCode of Civil Procedure (CPC), 1908 - Sections 48 and 146 - Order 21, Rule 16 - Order 22, Rules 3, 4, 8 and 12
AppellantC. Deva Sigamani Mudaliar and ors.
RespondentVenkatasami and ors.
Appellant AdvocateS. Rangaraj, Adv.
Respondent AdvocateS.N. Gopala Rao, Adv.
Excerpt:
- constitution of india article 226; [anand byrareddy, j] establishment of petrol bunk prescription of distance of 300 meters between two adjacent fuel stations held, the prescription is in respect of fuel filling stations situated adjacent to each other and not to stations which are on opposite sides of road. there is no minimum distance between such stations on opposite sides of road, prescribed. proposed fuel station of respondent and existing fuel station of petitioner were on either side of a high way. prohibition of distance between two adjoining stations would not apply. .....135/46-47. venkataswami the decree-holder died on december 20, 1948. 3. on november 15, 1949, his legal representative made two applications, i.a. 2 and i.a. 5 in the court below. i.a. 2 was made by the legal representative of venkataswami in ex. no. 1,35/46-47 praying for permission of the court to bring himself on record in place of the deceased decree-holder in the said execution case and in all other proceedings relating to that matter so that he might continue the execution proceedings in place of the deceased decree-holder. i.a. 5 was an application made in ex. no. 82 of 41-42 in which the said legal representative requested that lie might be brought on record in place of the deceased decree-holder in the said execution proceedings and in all other proceedings in execution of the.....
Judgment:

A.R. Somnath Iyer, J.

1. On September 13, 1934, a money decree was made in favour of one Venkataswami, who was the plaintiff in O.S. No. 31/32-33 on the file of the District Judge, Bangalore, against two defendants, Devashikhsymani Mudaliar and Varadaraja Mudaliar, All the parties to that suit are now dead.

2. On an application presented on December 16, 1941, that decree was being executed by the deceased decree-holder Venkataswami in Execution Case No. 82 of 1941-42. His prayer in those execution proceedings was that that decree should be transferred to the appropriate Court in Vellore for the decree being executed in that Court against certain properties belonging to the judgment-debtors and situate within that jurisdiction.

Another application presented on September 9, 1946 for the execution of that decree by the deceased decree-holder Venkataswami was pending in the Court below in Ex. No. 135/46-47. Venkataswami the decree-holder died on December 20, 1948.

3. On November 15, 1949, his legal representative made two applications, I.A. 2 and I.A. 5 in the Court below. I.A. 2 was made by the legal representative of Venkataswami in Ex. No. 1,35/46-47 praying for permission of the Court to bring himself on record in place of the deceased decree-holder in the said execution case and in all Other proceedings relating to that matter so that he might continue the execution proceedings in place of the deceased decree-holder.

I.A. 5 was an application made in Ex. No. 82 of 41-42 in which the said legal representative requested that lie might be brought on record in place of the deceased decree-holder in the said execution proceedings and in all other proceedings in execution of the decree pending in E.P. No. 135/46-47 of the District Court, Bangalore, and E.P. No. 91/45 and 99/46 pending in the Court of the Subordinate Judge at Vellore, and also for permission to continue all those proceedings in place of the deceased decree-holder.

4. Four of the seven legal representatives of the first Judgment-debtor Devashikhamani Mudaliar, objected to those two applications being granted. Their first objection was that the applicant in I.A. 2 and I.A. 5 was not the legal representative of the deceased decree-holder Venkataswami and their second objection was that the application for his substitution as the legal representative of the deceased decree-holder Venkataswami was barred by limitation.

The learned District Judge overruled both those contentions and from his orders the four legal representatives of the deceased first judgment-debtor Devashikhamani Mudaliar have appealed to this Court.

5. R.A. No. 60/53 relates to the order made on I.A. 2 in Ex. No. 135/46-47 and R.A. No. 61/53 relates to the order made on I.A. 5 in Ex. No. 82/41-42.

6. Mr. Rangraj appearing for the appellants did not press the contention that the applicant in those interlocutory applications was not the legal representative of the deceased decree-holder Ven-kalaswami, but he very strenuously contended before us that those two interlocutory applications were barred by limitation.

7. His contention is that the moment Venkataswami died on December 20, 1948, the execution proceedings started by him came to an end and that the two interlocutory applications presented by his legal representative who is the first respondent in those two appeals must be regarded as fresh execution applications presented by him on November 15, 1949.

That being so, it is urged by Mr. Rangraj that those applications having been presented more than twelve years from the date of the decree, were time barred, as provided by Section 48 of the Code o Civil Procedure.

8. Mr. Rangraj was not able to point out any provision of law justifying his contention that art execution application presented by a decree-holder comes to an end with his death. On the contrary, Rule 12 of Order XXII of the Code of Civil Procedure which provides that nothing contained in Rules 3, 4 and 8 of Order XXII of the Code of Civil Procedure shall apply to proceedings in execution of a decree or order, is a sufficient answer to his contention.

If Rules 3, 4 and 8 of Order XXII of the Code of Civil Procedure, do not apply to proceedings in execution, it follows that an execution application, unlike a suit, does not abate when the decree-holder dies. If an execution application does not so abate and the execution proceedings relating to that execution application do not come to an end when the decree-holder dies, it is difficult to understand how Mr. Rangraj would be justified in contending before us that the execution proceedings started by Venkataswami during his lifetime came to an end on 20-12-1948 on which date he died.

9. Rule 16 of Order XXI of the Code of Civil Procedure, provides among other matters that where a decree is transferred by operation of law, the transferee may apply for execution of the decree, to the Court which passed it; and that the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder. It was under the provisions of this rule that the first respondent made his two applications, I.A. 2 and I.A. 5 in the Court below.

He was entitled to make that application not only under that Rule but also under Section 146 of the Code of Civil Procedure which provides that saveas otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.

10. In Venkatachalam Chetty v. Ramaswamy Servai, ILR 55 Mad 352: (AIR 1932 Mad 73) a Full Bench, of the High Court at Madras, took the view 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. That was also a case in which the decree-holder died more than 12 years after the date of the decree and the application bv his legal representatives for permission to continue the execution proceedings was made after his death.

The contention raised in that case that an execution application terminated with the death of the decree-holder and that his legal representative could make an application for execution of that decree only by the presentation of a fresh application was repelled. The contrary view taken by a previous decision of that High Court in Palaniappa Chettiar v. Valliammai Achi, ILR 50 Mad 1: (AIR 1927 Mad 184) was overruled by the Full Bench.

11. The observation of Mr. Justice Anantakrishna Ayyar in Venkatalakshamma v. Seshagiri Rao, 33 Mad LW 359: (AIR) 1931 Mad 303) pointing out the consequences of taking the contrary view was referred to in the course of that judgment. Anantakrishna Ayyar J. in that case said this:

'If the only remedy open to the legal representative of a deceased decree-holder in such a case is 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 effected pending the prior execution petition would prima facie no longer be available when a fresh execution petition is filed.

The advantages which a decree-holder has as a result of his having filed an execution petition, such as the right to share in the proceeds of auction sales held by the same Court after the filing 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 readily imagined .......'

Jackson J., in his separate judgment which he delivered in that case pointed out that to take the view which was, taken in ILR 50 Mad 1: (AIR 1927 Mad 184), that the legal representatives of a deceased decree-holder mast present a fresh execution application in order to continue the execution proceedings started by the deceased decree-holder, would be doing that very thing which was expressly forbidden by the provisions of Rule 12 of Order XXII of the Code of Civil Procedure.

12. In my opinion, we must follow the decision of the Full Bench of the High Court at Madras, as laying down the correct law in such cases. That being so, these two appeals must stand dismissed with costs.

13. It will of course, be open to the appellants in these two appeals to urge in the execution proceedings in the Court below such objections as might still be available to them.

S.S. Malimath, J.

14. I agree.

15. Appeals dismissed.


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