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C.S. Loganathan Vs. P.L. Kapur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberInterim Application Appeal Nos. 996 and 1205 of 1971
Judge
Reported inILR1971Delhi175B
ActsCode of Civil Procedure (CPC), 1908 - Sections 146 - Order 22, Rule 2; Succession Act, 1925 - Sections 214(1)
AppellantC.S. Loganathan
RespondentP.L. Kapur and ors.
Advocates: J. Ramamurthy and; S. Semasekharan, Advs
Cases ReferredAkul Mabukhan v. Rajamma and
Excerpt:
.....code (1908) order.22, rule. 2.; that on a plain reading of section 146 it does appear that the legal heirs and legal representatives, in case there is a will, are persons who may continue proceedings pending in court by an application by such persons. in a suit the provisions of order 22 rule 2 c.p.c. would be attracted. this provision does not introduce any new rule or procedure but only gives legislative sanction to the well established doctrine and does not apply to proceedings in execution between a decree-holder and a judgment-debtor. the provisions of section 146 c.p.c. would become nugatory if the legal representatives of a deceased decree-holder have to file a fresh execution application and are not allowed to continue the execution proceedings already commenced by the..........and two daughters these five persons were brought on record in place of c.s. loganathan as his legal representatives but the application was granted subject to all just exceptions. it was further ordered that the name of c.s. loganathan be deleted from the record and in his place the names of the aforesaid five persons as his legal representatives be brought on the record. no notice of this application was ordered to the judgment-debtors. i.a. 996 of 1971 was then moved on behalf of the legal heirs of c.s. loganathan under sections 146 and 151 civil procedure code praying that this court be pleased in continuation of the order dated 21st may, 1971 permit the legal heirs to continue the execution proceedings for realisation of the balance of the decretal amount due. i.a. 1205 of 1971.....
Judgment:

Prakash Narain, J.

(1) This order will dispose of I.A. 996 of 1971 and LA. 1205 of 1971.

(2) C.S. Loganathan executed a decree for possession of a premises known as 3, Friends Colony, New Delhi against P.L. Kapur and others. He died on 11th May, 1971. On an application moved on behalf of his widow, his two sons and two daughters these five persons were brought on record in place of C.S. Loganathan as his legal representatives but the application was granted subject to all just exceptions. It was further ordered that the name of C.S. Loganathan be deleted from the record and in his place the names of the aforesaid five persons as his legal representatives be brought on the record. No notice of this application was ordered to the judgment-debtors. I.A. 996 of 1971 was then moved on behalf of the legal heirs of C.S. Loganathan under sections 146 and 151 Civil Procedure Code praying that this court be pleased in continuation of the order dated 21st May, 1971 permit the legal heirs to continue the execution proceedings for realisation of the balance of the decretal amount due. I.A. 1205 of 1971 was then moved by the legal heirs of C.S. Loganathan to the effect that C.S. Loganathan had appointed four executors under his will dated 3rd January, 1966 and those four executors may also be brought on record as the legal representatives of C.S. Loganathan. Two executors are sons of C.S. Loganathan who have already been brought on record subject to all just exceptions by the order dated 19th May, 1971. Notice of these two applications was given to the judgment-debtors who have opposed grant of the two applications. I have heard Shri S. Ramamurti on behalf of the applicants and Shri H.L. Anand on behalf of the judgmentdebtors.

(3) The contention on behalf of the applicants is that the legal representatives of the deceased C.S. Loganathan are entitled to continue execution proceedings without obtaining probate of the will left by C.S. Loganathan and that the legal heirs or legal representatives need not file fresh execution application. It is also contended that there is no limitation or time limit for filing such an application to continue the execution proceedings for the provisions of Order 22 of the Code of Civil Procedure are not attracted in execution proceedings. It is also contended by the applicants that the provisions of the Indian Succession Act, 1925, in particular Section 214 creates no bar to the legal heirs or legal representatives continuing with the execution of a decree. On behalf of the judgment-debtors it has been contended that as admittedly C.S. Loganathan has left a will the heirs cannot continue with any legal proceedings and it is only the legal representatives who are entitled to do so. These legal representatives would be the executors of the will of C.S. Loganathan and unless the will was probated they cannot proceed in view of the provisions of Indian Succession Act, in particular Section 213. Mr. Anand appearing for the judgment- debtors has contended that it is necessary that the executors should first get a probate of the will, for if the will is not prove their being allowed to continue the execution proceedings would be an illegality, for if the will is not proved the executors would have no locus standi to intervene in any legal proceedings and their intervention would not bind the legal heirs of C.S. Loganathan.

(4) There is no dispute that Order 22 Civil Procedure Code would not be attracted in execution proceedings. Section 146 of the Code of Civil Procedure is the only provision which comes into play at this stage apart from the residuary powers of the court saved by Section 151 of the Code of Civil Procedure. Section 146 reads as under :-

'save as 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.'

(5) On a plain reading of the above section it does appear that the legal heirs and legal representatives in case there is a will are persons who may continue proceedings pending in court by an application by such persons. In a suit the provisions of Order 2 Rule 22 Civil Procedure Code would be attracted. This provision does not introduce any new rule or procedure but only gives legislative sanction to the well established doctrine and does not apply to proceedings in execution between a decree-holder and judgment-debtor. As was laid down by a Full Bench of the Madras High Court in Venkatachalam Chetti v. Ramaswamy Servai and others Air 1932 Mad 73 the legal representatives of a decree-holder who dies during the pendency of an execution petition can be substituted in execution petition and be allowed to continue it without the legal representatives having to file a fresh application for execution by virtue of the provisions of Section 146 Civil Procedure Code Coming nearer home the decision of the Punjab High Court in Ram Lohia v. Mt. Manno and others, , (Circuit Bench at Delhi) took the same view. Falshaw, J, (as he than was) did not agree with the view expressed by the Allahabad and Avadh High Courts which had taken a view contrary to the Full Bench view of the Madras High Court above-referred to. The Madras view is in keeping with the views expressed by the Bombay and the Calcutta High Courts. I am in respectful agreement with the views expressed by Falshaw, J., for to me it appears that the provisions of Section 146 Civil Procedure Code would become nugatory if the legal representatives of a deceased decreeholder have to file a fresh execution application and are not allowed to continue the execution proceedings already commenced by the deceased decree-holder by an application.

(6) This brings me to the question of the bar to such an application being moved, pleaded by the judgment-debtors keeping in view the provisions of the Indian Succession Act. The only relevant provisions in this behalf are Sections 212, 213 and 214. Section 212 deals with right to intestate property, Section 213 deals with the rights of executors or legatees when established to property devised by will and Section 214 lays down the prohibition on a court to pass any decree against a debtor of a deceased person for payment of his debt in favor of a person claiming succession or proceed upon an application of a person claiming to be so entitled to execute against such a debtor a decree or orders for payment of his debt except on the production by the person so claiming of a probate or letters of administration or succession certificate etc. Mr. Ramamurti's contention is that the bar of Section 214 would come in only if a fresh execution application was required to be moved by the legal heirs or legal representatives. Mr. Anand has contended that apart from the requirement of legal representative or a legal heir to move a fresh execution application in the present case since, admittedly, C.S. Loganathan left a will Section 213 is clearly attracted. I have already held that it is not necessary for the legal representatives to move a fresh application. Section 214(l)(b) has no application when legal representatives and legal heirs have applied under section 146 Civil Procedure Code . to continue the proceeding which had already been commenced by C.S. Loganathan. In the present case in executing the decree the court will not be proceeding upon the application of a person claiming to be entitled to the effects of a deceased person. It was proceeding originally upon the application of C.S. Loganathan himself and when he died during the pendency of the execution proceedings the bringing on record of the applicants would not mean hat the court will be proceeding upon an application moved by them execute the decree. I am fortified in coming to this conclusion by a Bench decision of the Calcutta High Court in Mahomed Yusuf v. Abdw Rahim Bepari and others, I.L.R. 26 Cal 839. The Patna High Court has taken the same view in the reported decisions in Lal Kumari Devi and others v. Fulmati Kuer and others, : AIR1965Pat296 , and in Raghvbir Narain Singh v. Raj Rajeshwari Prasad Singh and others, : AIR1957Pat435 . The prohibition enacted in Section 214(1)(b) of the Succession Act does not apply to a person who seeks to come on record as a legal representative of a decree-holder for the purpose of continuing the execution application. No succession certificate would be necessary to continue the execution proceedings. As was held by a Bench of the Andhra Pradesh High Court in Akul Mabukhan v. Rajamma and others, : AIR1963AP69 . The Punjab High Court also has taken the same view in Bachan Singh and others v. Firm Arhat Ram Singh-Bakhtawar Singh I.L.R. 1957 Pun 234. The preponderance of judicial opinion, thereforee, is that Section 214(l)(b) does not stand in the way of the legal representatives of a deceased decree holder in continuing the execution instituted by a deceased decree-holder. No law has been cited before me on behalf of the judgment-debtors taking a contrary view. I, thereforee, hold that the prohibition enacted in Section 214(1)(b) does not stand in the way of granting the applications.

(7) I may notice one other aspect of this case and that is that both the applications have been moved by the legal heirs of C.S. Loganathan for abundant caution that the executors of the will of C.S. Loganathan be also allowed to be imp leaded as legal representatives and continue the execution applications. It is no doubt true that the judgment debtors had no notice of the application by which the legal heirs of C.S. Loganathan were ordered to be substituted for him in the execution application filed by C.S Loganathan all the same no execution can be taken for that order for, prima fade, it has not been shown to me that No. 3, Friends Colony is a property covered by the will of C.S. Loganathan. In any case, in my view, when the legal heirs themselves want that not only they but the executors of the will be substituted in place of C.S. Loganathan and be allowed to continue the execution application filed by the deceased the argument raised by Mr. Anand that the judgment-debtors will not get full discharge vis-a-vis the estate of the deceased loses all force. I, thereforee, grant both the applications and order that the five legal heirs of C.S. Loganathan and his four executors two of them being the sons of C.S. Loganathan and legal heirs already brought on record, be substituted in place of C.S. Loganathan in the execution application filed by him and are hereby allowed to continue the execution against the judgment-debtors.

(8) The history of this case reveals that the judgment-debtors have been placing obstructions in all possible manner and though they may have a right to raise objections in court, their entire purpose seems to be to delay the execution proceedings. In this view of the matter I am inclined to award costs against the judgment-debtors and so allow 1.A. 996 of 1971 and I.A. 1205 of 1971 with costs. Counsel's fee Rs. 300.00.


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