V.S. Bhargava, J.
1. The facts which have given rise to these appeals are that Thakur Ranvijai Singh of Sarana, the predecessor of the appellants instituted a suit for ejectment against Sualal, Laxmi Narain. Kanhaiyalal and Mohanlal, sons of Baluram in the Court of Sub-Judge, First Class, Kekri, for recovery of possession of land which was decreed in his favour on 8th May, 1952, This decree was upheld both by the District Judge, Aimer and the Judicial Commissioner, Ajmer.
The decree was in the following terms:--
(i) A decree is passed for vacant possession of the land in suit with costs in favour of the plaintiff.
(ii) The defendants, who are entitled to remove their 'malba' would deliver vacant possession of the land after removing their 'malba' within 15 days from today;
(iii) They are also restrained by means of a permanent injunction from making any further encroachment on the suit land and constructing upon it.
The decree-holder took out execution proceedings on 1-5-57 but during the pendency of those proceedings, the Ajmer Abolition of Intermediary and Land Reforms Act, 1955 (hereinafter referred to as the Act) had come into force and thereupon the Judgment-debtors made an objection on 28-11-1957 to the effect that as the property after the coming into force of the aforesaid Act had vested in the State, the decree-holder had no right to execute it. The executing Court rejected the Judgment-debtors' objection and issued a warrant for delivery of possession.
On 12th September, 1958, the Reader of the Executing Court went on the spot to execute the warrant and in compliance of it got the structures over the land demolished and the decree-holder was put in possession of the land. The Judgment-debtors, however, took an appeal to the Court of the Senior Civil and Additional Sessions Judge against the order of the Executing Court dated 11-9-1958, and the learned Senior Civil Judge by his order dated 28-8-1959 remanded the case to the executing court for recording the evidence of the parties and then dispose of the case afresh in accordance with law.
After the order of remand, the Executing Court recorded evidence and after hearing the parties, dismissed the execution application by its order dated 18-1-1961, holding that the decree-holder had no right to execute the decree. The decree-holder preferred an appeal against the said order and on 20th February, 1964, the case was again remanded to the Executing Court with the direction that the State Government be made a party to the proceedings.
Although the State Government was made a party, but it did not put in appearance before the Executing Court. The executing Court again dismissed the execution application on 20th February, 1964, upholding its previous view. In the meanwhile, the Judgment-debtors made an application for restitution under Section 144, Civil Procedure Code on the 28th February, 1961. The decree-holder again preferred an appeal against the order of the Executing Court dated 20th February, 1964, but it was dismissed on 12-11-1965 and civil execution second appeal No. 22 of 1966 is directed against that order.
On the application of the Judgment-debtors under Section 144, Civil P. C., the Executing Court by its order dated 10th March, 1964, ordered restitution of the land in dispute and also directed the decree-holder to pay Rs. 7000 to the Judgment-debtors on account of damages caused by demolition of their building. The decree-holder appealed to the Court of the Senior Civil Judge Ajmer, but without any success. Civil Execution Second Appeal No. 3 of 1966 is directed against the appellate order of the Senior Civil Judge, Ajmer, dated 16-12-1965.
In both these appeals, the respondents judgment-debtors made an application that Laxminarain, one of the Judgment-debtors died on 10th May, 1967, and the appellants have not made any application within the prescribed time for substituting his legal representatives on record and as such the appeals have abated. Because this common question has been raised in both the appeals, it is being decided by one Judgment.
2. Learned counsel for the appellants relies on Rule 12 of Order 22, Civil P. C. which says that nothing in Rules 3, 4 and 8 of Order 22 shall apply to proceedings in execution of a decree or order. The contention of the learned counsel is that because these appeals arise out of execution proceedings, therefore. Rule 12 equally applies to it and because of the failure to substitute the legal representatives of the Judgment-debtors, the appeals cannot abate. It is pointed out that the proceedings under Section 144, Civil P. C. are also execution proceedings and as such Rule 12 of Order 22 shall also be applicable to execution second appeal No. 3 of 1966. For the proposition that proceedings under Section 144 Civil P. C. are execution proceedings reliance is placed on a decision of the Supreme Court in M. M. Barot v. P. M. Gokalbhai, 1965 All LJ 525 = (AIR 1965 SC 1477).
3. Learned counsel for the respondents on the other hand relies upon Rule 11 of Order 22 and urges that Rules 3, 4 and 8 of Order 22 apply to all appeals whether they be against the decree or orders arising out of execution proceedings. He urges that an appeal from an order arising out of execution proceedings is not a proceeding in execution so as to attract the application of Rule 12. It is argued that though an appeal from an order out of execution proceedings may be a continuation of the execution proceedings, but it is not a proceeding in execution within the meaning of rule 12.
4. On the question whether Rule 12 of Order 22, Civil P. C. applies to appeals from orders relating to execution proceedings, there is a conflict of decisions which is noted at page 1275. Note 2 of Second Volume of Mulla's Code of Civil Procedure (13th Edition). Excepting the High Court of Patna which by majority held in Hakeem Syed v. Fateh Bahadur, AIR 1929 Pat 565 (FB) that Rule 12 has the effect of excluding appeals in execution proceedings from Rules 3, 4, and 8 and that there can be no abatement of such an appeal, most of the other High Courts have taken a contrary view and it has been held that an appeal against an order in execution is not a proceeding in execution of a decree and that such an appeal can abate as Rule 12 does not apply. In this connection see Rajah of Kalahasti v. Jagannadha, AIR 1932 Mad 574; Subbavarupa Gangunaidu v. Murru Muttenna, AIR 1934 Mad 664 (1); Cheda Lal v. Alias Hussain, AIR 1936 Lah 1022; Ajodhia Pershad Ram Pershad v. Sham Sunder, AIR 1947 Lah 13 (FB); Trimbak Narhar v. Gopal Narayan, AIR 1947 Bom 480; Balaram v, Subodh Chandra, AIR 1956 Assam 9; Bishnu Bijoy v. Chandra Bijoy, AIR 1955 Cal 281; Madhavrao v. Baliram,, AIR 1938 Nag 502; Chandravati Bai v. Chaganlal, AIR 1962 Andh Pra 308; Surendranath v. Dasarathi Dutta, AIR 1960 Orissa 14; Hari Saran v. Har Kishan, AIR 1934 Oudh 337; Jagadish Bahadur v. Mahadeo Prasad, AIR 1941 Oudh 16; Ahsan Elahi v. Mehr Elahi, AIR 1950 East Punj 302 and Changa Mal v. Chaubey Ram, AIR 1933 All 388.
Thus the consensus of judicial opinion is that Rule 12 of Order 22 does not exempt pending appeals even though they arise out of execution proceedings. The reason for this view is that so far as proceeding in execution of a decree is concerned, a fresh application for execution, unless it is barred by limitation or barred on the principle of res judicata, can be made from time to time by the legal representatives of the decree-holder or against the legal representatives of the Judgment-debtor if he dies during such proceedings. But an appeal stands on quite a different footing. If one appeal has already abated no successive appeal can be filed.
Section 50 of the Code of Civil Procedure clearly makes a provision 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. It is because of this provision that Rule 12 of Order 22 excludes the execution proceedings from the operation of Rules 3, 4, and 8 of Order 22, Rule 12, therefore, must be construed as referring to proceedings in the executing Court and not to appeal arising from execution proceedings.
The Code of Civil Procedure makes a clear distinction between execution proceedings and appeal. The procedure for execution proceedings is laid down in part II and Order 21 while the procedure for appeals is contained in part VII and Orders 42, 43, 44 and 45. The Code of Civil Procedure makes no distinction between appeals from decrees in suits and against orders passed in execution proceedings. The provisions of Order 41 equally apply to both kinds of appeals.
Rule 11 of Order 22 makes no distinction between appeals against the decrees and those relating to execution proceedings. This rule provides that:
'In the application of this Order to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent, and the word 'suit' an appeal'.
Thus it refers to all appeals in general and appeals arising out of execution proceedings cannot be excluded from the application of Rule 11. There is nothing to indicate that Rule 11 has to be read subject to Rule 12.
The reason which prevailed with the Patna High Court in AIR 1929 Pat 565 (FB) (Supra) in taking the view that Rule 12 applies to appeals relating to execution proceedings also was that such appeals were considered as continuation of the execution proceedings. It is true that an appeal against an order out of execution proceedings may be a continuation of execution proceedings but it is not a proceeding in execution properly so called. In a way the execution proceedings are also a continuation of the suit but such proceedings are not a suit.
I am, therefore, of the view that the provisions of Rule 12 apply only to proceedings in execution and the said provisions cannot be extended to appeals arising from such proceedings. Rule 11 of Order 22 applies to such appeals and they are thus subject to all the provisions of Order 22 including Rules 3, 4 and 8.
5. There is no dispute that Laxminarain deceased was a necessary party to these appeals and in the absence of his legal representatives, these appeals cannot proceed, because any Judgment passed in the absence of his legal representatives will not be binding upon them and would result in passing of inconsistent orders. This being so, both these appeals abate in their entirety.
6. It is accordingly ordered that as the appellants failed to take steps for bringing the legal representatives of Laxmi Narain on record, these appeals have abated. Learned counsel prays for leave to appeal. Leave to appeal is granted because so far there is no other recorded decision of this Court on this point. The parties shall bear their own costs of these appeals.