Sultan Singh, J.
(1) This revision petition under Section 115 of the Code of Civil Procedure (for short 'the Code') is directed against the judgment and order dated 19th January, 1984 of the Subordinate Judge, Delhi dismissing the petitioner's application for bringing him on record as legal representative of the deceased judgment debtor Murari Lal.
(2) There arc the brief facts. Murari Lal judgment debtor was in possession of a room on second floor of House No. 4902 Gali Dakoton Wali, Laddo Ghati, Paharganj, New Delhi. Smt. Man Bhauti, respondent No. I filed a suit for possession and recovery of damages against him with respect to the said premises. The suit was decreed on 12th November, 1975.
(3) Smt. Savitri Devi, respondent No. 2 on 18th January, 1982 filed an application for execution of the said decree for possession. She alleged that she purchased the entire property including the premises in occupation of Murari Lal judgment debtor by means of sale deed dated 22nd October. 1981 and supplementary sale deed dated 15th December, 1981 executed by Man Bhauti respondent No. 1. Notice of the execution was issued to the judgment debtor who filed objections dated 16th April, 1982 under Section 47 of the Code, alleging that the decree was inexecutable, that Savitri Devi had no right, title or locus standi to execute the decree, the decree was void ab initio and there was inherent lack of jurisdiction in the court passing the decree, that the jurisdiction of the court was barred by Section 50(1) of the Delhi Rent Control Act, 1958, that the decree was obtained by fraud and misrepresentation besides others. Smt. Savitri Devi filed reply dated 7th May, 1982 denying the objections.
(4) Murari Lal judgment debtor died on 17th July. 1982 as a bachelor. Smt. Savitri Devi. respondent No. 2 on 20th September, 1982 filed an application under Order 22 rules 4A and 12 and Sections 50 and 151 of the Code alleging that Murari Lal died on 17th July, 1982 as bachelor, there was no legal representative of the deceased judgment debtor and prayed that she be substituted in place of Man Bhauti, Decree-holder and warrant of possession be issued in respect of the disputed premises.
(5) On 4th March, 1983 Chiranji Lal Sharma, petitioner filed an application under Order 22 read with Order I rule 10 and Section 50 and 151 of the Code before the executing court. He has alleged that Murari Lal, deceased judgment debtor filed objections, that he is his son that the objections of Murari Lal are required to be decided and he be substituted as his heir. Savitri Devi. respondent No. 2 filed reply dated 8th July, 1983 saying that Murari Lal was a tresspasser, that the petitioner had no locus standi, the objections filed by Murari Lal were false, that Murari Lal was a bachelor and the petitioner is not his son. It has been denied that petitioner is the heir of Murari Lal. The executing court by the impugned order has held that the petitioner was the nephew of Murari Lal, deceased judgment debtor, he was not the son and cannot claim to be an heir of the judgment debtor, that there was no need of his substitution and he do not inherit anything. By the impugned order Savitri Devi was brought on record in place of the original decree-holder and the executing court directed issue of warrants of possession. The petitioner has filed this revision.
(6) Learned counsel for the petitioner submits that the petitioner being the nephew of the deceased judgment debtor as held by the executing court is entitled to be substituted as his legal heir, that the possession of a trespasser is heritable and his heir is entitled to be brought on record, that the objections filed by Murari Lal cannot be decided without bringing on record his legal representative, that it is mandatory to bring the legal representative of the judgment debtor on recode and in any case the estate of the deceased judgment debtor must be represented by some person before the court. Learned counsel for the respondents decree-holder submits that Murari Lal was only a tresspasser, he left no son or daughter and hence his rights are not heritable by any one and the petitioner though a nephew of the deceased Judgment debtor has no legal right to be substituted in his place.
(7) Learned counsel for the petitioner has referred to the various provisions of law contained in Sections 2(11) 50(1), 146, Order 21 Rules Ii, 16 and 22(1)(b) and Order 22 rules 4A and 12 in support of his submission that the petitioner be substituted as an heir.
(8) Section 50 of the Code provides that where a judgment debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of the deceased. In Kanchamalai Pathar v. Shahaji Rajah Sahib and others, Air 1936 Mad 205 it has been held that the language of Section 50 of the Code is permissive but this does not mean that recourse of the section may not be obligatory and that if a decree-holder does not desire to proceed with the execution after the judgment debtor's death or if there are other parties on record against whom the decree can be executed, there will be no occasion to have recourse to Section 50 of the Code. It has been further observed that if execution of the decree is necessary against the legal representative of the deceased judgment debtor, the decree-holder has no option but to proceed under Section 50 of the Code, and he must apply to the court to execute the decree against the legal representative and notice must issue to the legal representative as required by Order 21 rule 22 of the Code. It has also been observed that on the death of a Judgment debtor before an application for execution has been finally disposed of, the proper course for the decree-holder is either to present a fresh application for execution against the legal representative or to continue the existing execution petition by making the legal representative a parly to it.
(9) Chiranji Lal, petitioner, nephew of the deceased judgment debtor is an heir in class Ii item Iv of the Schedule read with Section 8 of the Hindu Succession Act. 1956. Under Section 2(11) of the Code also he is the legal representative of the deceased judgment debtor. Section 146 of the Code provides that 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. The petitioner claims his right to be substituted under Murari Lal, deceased to substantiate the objection and thereforee be has a right to approach the court under Section 146 of the Code for being substituted although it was the duty of the decree holder to move necessary application under Order 21 rule 22 of the Code. When application is made by the legal representative he should not be denied from being made a party as L.R. of the deceased-judgment debtor Order 21 rule 16 of the Code provides for application for execution by transferee of decree. It further provides that if an application for execution is made by the transferee notice of such application shall be given to the transferor and the judgment debtor and the decree shall not be executed until the court has heard their objections to its execution. In the instant case notice was issued to Murari Lal. His objections are pending. Unless the objections are decided execution proceedings cannot conclude. Order 21 rule 22 of the Code provides that where an application for execution is made against the legal representative of a party to the decree the court executing the decree shall issue notice to the person against whom execution is applied for requiring him to show cause why decree be not executed against him. The decree-holder instead of filing fresh execution application made an application that there was no legal representative. The petitioner made an application that he was the legal representative entitled to be substituted. In other words, it was the duty of the executing court to proceed with the execution only after bringing on record the legal representative of the deceased judgment debtor under Section 50 of the Code. The executing court thus acted illegally in exercise of its jurisdiction by refusing to bring on record the petitioner as an heir and legal representative of the deceased-judgment debtor Murari Lal.
(10) Learned counsel for the respondents submits that Murari Lal was a tresspasser and his heir does not have any right in the suit premises. This may be correct, but the question is how to proceed with the objections of the judgment debtor and the execution proceedings. Order 22 rules 4A and 12 of the Code provide that where there is no legal representative, the court is required to give notice to a person having an interest in the estate of the deceased person and to appoint such person to represent the estate of the deceased. This provision is applicable to execution proceedings also.
(11) It is well known that a person in possession of land without title has an interest in the property which is heritable and good against the entire world excepting against the true owner and this interest unless the true owner interferes, is transferable [See: Jayagopal Mundr v. Gulab Chand Agarwalil and Ors. : AIR1974Ori173 and Kitab Ah and others v. Anil Behary Dutta and others : AIR1939Cal723 . Thus unless the objections of the deceased Murari Lal who is alleged to be a tresspasser are decided in accordance with law, warrants of possession as claimed cannot be issued. The petitioner being the nephew of the deceased judgment debtor is entitled to be substituted as his heir. As a matter of fact the decree-holder ought to have applied to bring him on record under Section 50 of the Code. But in any case the petitioner himself made the application claiming to be a legal representative. The court has also wrongly brought Smt.Savitri Devi on record in place of the decree-holder. She has not proved her right as owner of the suit property.
(12) The revision petition is accepted setting aside the impugned order dated 19th January, 1984. Chiranji Lal, petitioner is brought on record as legal representative of the deceased Murari Lal, judgment debtor. The executing court shall now proceed to decide the objections filed by Murari Lal under Section 47 of the Code as well as the allegation of the respondent Savitri Devi that she purchased the property and thereforee became entitled to execute the decree in question in accordance with law. No order as to costs.