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Hemchand Kishorilal Vs. Tekchand Kalloolal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 281 of 1957
Judge
Reported inAIR1959MP403
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 16; Limitation Act, 1908 - Schedule - Article 182(5)
AppellantHemchand Kishorilal
RespondentTekchand Kalloolal and ors.
Appellant AdvocateG.C. Koshal, Adv.
Respondent AdvocateJ.N. Sinha, Adv.
DispositionRevision allowed
Cases ReferredRadha Nath Das v. Produmna Kumar Sarkar.
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 7. however, this cannot be considered to be good law in view of the pronouncement of their..........shrivastava, j.1. this petition for revision has been filed by hemchand, who is one of the legal representatives of the judgment-debtor, against the order of the executing court, dated 31-8-1957, by which he and his three sons have been brought on record as legal representatives of the deceased judgment-debtor kishorilal and non-applicants nos. 1 and 2 have been brought on record as legal representatives of the deceased decree-holder kalloolal. kalloolal had obtained a decree against kishorilal on 21-3-1950.the judgment-debtor kishorilal died on 10-11-1953 and an application to bring the petitioner and his three sons on record was filed on 6-2-1954. while this application was pending, the decree-holder kalloolal also died on 29-10-1954 and the non-applicants nos. 1 and 2.....
Judgment:
ORDER

T.C. Shrivastava, J.

1. This petition for revision has been filed by Hemchand, who is one of the legal representatives of the judgment-debtor, against the order of the executing Court, dated 31-8-1957, by which he and his three sons have been brought on record as legal representatives of the deceased judgment-debtor Kishorilal and non-applicants Nos. 1 and 2 have been brought on record as legal representatives of the deceased decree-holder Kalloolal. Kalloolal had obtained a decree against Kishorilal on 21-3-1950.

The judgment-debtor Kishorilal died on 10-11-1953 and an application to bring the petitioner and his three sons on record was filed on 6-2-1954. While this application was pending, the decree-holder Kalloolal also died on 29-10-1954 and the non-applicants Nos. 1 and 2 (Tekchand and Suresh-chand) applied for being brought on record in his place on 30-8-1956. Both these applications were decided by the order under revision.

2. The petitioner had objected to the applications on various grounds. He denied that he was a legal representative of the deceased Kishorilal, or that the non-applicants Nos. 1 and 2 were the legal representatives of the deceased Kalloolal. He stated that the anplication for bringing the legal re-presentatives of the inclement-debtor on record was not validly presented and was also barred by time. In revision he has raised the contention that both the petitions were not tenable.

3. It appears from the proceedings in the lower Court that the application for bringing the legal representatives on record filed On 6-2-1954 was pending when the other application for bringing the legal representatives of the decree-holder was filed on 30-8-1956. The real question, therefore, which would arise for determination in this revision is whether the application dated 6-2-1954 was tenable and was within time, Jf it was, the application dated 30-8-1956 which was filed during the pendency of that application, as the decree-holder died, would be within time.

4. The first contention of the petitioner is that as the decree was passed on 21-3-1.950 and the application was filed on 6-2-1954, i.e, more than three years after the decree, it was barred by time. The trial court has observed that the petition was within time, as it was within three years after the decision of the appeal which was filed against the decree. The date of the decision in appeal cannot be ascertained from the record, but this statement made by the Court in paragraph 6 of its order has not been controverted.

Accordingly, I must hold that the application dated 6-2-1954 was filed within three years from the data of the decision of the appeal. It was, therefore, within time under Article 182 (2) of the Indian Limitation Act.

5. The next question is whether an application for mere substitution of legal representative of the judgment-debtor, without filing an application for execution, was tenable. Such an application falls under Order 21, Rule 16, Civil Procedure Code. That rule provides for applications for execution to bo filed by persons in whose favour the interest of any decree-holder is transferred by assignment in writing or by operation of law. The expression 'by operation of law' has been interpreted to cover devolution of the decree by inheritance. Accordingly, the provisions in Order 21, Rule 16, apply to applications by legal representatives.

6. The rule does not expressly provide for applications merely for substitution of names. What it says is that the decree may be executed by the legal representatives or the transferees in the same manner as by the original decree-holder. It is open to the legal representatives or the transferees to continue any application which may have been filed by the decree-holder before his death, or they may file a fresh application. (See Akhoy Kumar v. Surendra Lal, AIR 1926 Cal 957 and Govindrao v. Ganapatrao Raghobaji, AIR 1947 Nag 116).

In the instant case, however, no application for execution was filed along with the application for substitution of the legal representatives. The view which has prevailed in this State is that an application for mere substitution by legal representatives of the deceased decree-holder is maintainable and is a step-in-aid of execution within the meaning of Article 182 (5) of the Limitation Act. In Prayagdas v. Indf'rabai, AIR 3944 Nag 80. it has been observed that an application for substitution by the legal representative of the deceased decree-holder, while it would not amount to an insti-tution of a fresh execution and while it is not in itself an application for execution, is nevertheless a step-in-aid of execution. The two applications, namely, an application for substitution and an application to execute a decree, need not be simultaneous or form part of the same application. Similarly, in Ramchandra v. Uka. AIR 1927 Nag 308, an application for substitution of the heirs of the deceased judgment-debtor has been treated as a step-in-aid of execution. It was observedthat merely because the decree-holder instead of asking the Court, which passed the decree, to execute the decree against tho legal representative after service of notice under Order 21, Rule 22, Civil Procedure Code, asked that Court to first complete the array of parties and thereafter makes an application for execution of the decree, he cannot be said to have acted in manner which does not accord with law. It would thus appear from these two decisions that an application for substitution of legal representatives, unaccompanied with an execution application, is valid in law and can be maintained.

7. However, this cannot be considered to be good law in view of the pronouncement of their Lordships of the Supreme Court in Jugalkishore v. Rao Cotton Co., (S) AIR 1955 SC 376. In that case, the assignee of a decree-holder filed an application for execution under Order 21, Rule 11, Civil Procedure Code, without specifying the mode in which he sought to execute the decree but only indicating that the assignment in his favour be recognized and he may bo substituted for the decree-holder. In paragraph 60 of the Judgment, their Lordships referred to a Calcutta case, Radha Nath Das v. Produmna Kumar Sarkar. ILR (1939) 2 Cal 325, in which it was held that under Order 21, Rule 16, Civil Procedure Code, the assignee of a decree cannot make two applications, one for recording the assignment and another for executing the decree. The following passage from that judgment was quoted:

'It seems to me to be obvious from the wording of the Rule that there can be no notice to the transferor or judgment-debtor and no hearing of any objection unless and until there is an application for execution. The notice and the entire proceedings under Order 21, Rule 16, originate from an application for execution. If there is no such application, the proceedings are without any foundation. Order 21, Rule 16 of the Code nowhere provides for an application to record an assignment or for an application for leave to execute a decree by an assignee or for an application for substitution.'

This view was accepted as stating tho correct position of law. A contrary view had been expressed in two Bombay cases, which were dissented from in the Calcutta case, and their Lordships laid down that the view taken by the Bombay High Court was not correct. If. must now, therefore, be held that a mere application for substitution, unaccompanied by an application for execution, is not contemplated under Order 21, Rule 16, and is not tenable.

8. In this view, the application filed on 6-2-1954 for bringing the legal representatives on record was not tenable and should have been dismissed.

9. Other points raised by the applicant neednot be considered. The revision is allowed. Theapplications dated 6-2-1954 and 30-8-1958 shallstand dismissed with costs. Costs of this revision shall be borne by the non-applicants. Counsel's fee Rs. 25/-.


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