1. In this case a decree was obtained by the plaintiff for money against one Ramachandrayya on the 29th February, 1912. After a number of other execution petitions eventually a petition, E.P. No. 125 of 1924, was put in for execution of the decree against Ramachandrayya on the 18th February, 1924. In the course of those proceedings it came to light that Ramachandrayya had disappeared seven or eight years earlier, and therefore it was presumed that he was dead. The decree-holder in those circumstances wished to prosecute the same execution petition against Ramachandrayya's widow as his legal representative and put in an application E.A. No. 543 of 1924 for that purpose on the 5th July, 1924. It-will be seen that' that application to treat the widow as Ramachandrayya's legal representative was put in more than 12 years after the date of the decree. It was contended that on account of that lapse of time, Section 48 of the Code of Civil Procedure prevented the execution, against the widow continuing; The widow took some other objections to the execution in the District Munsif's Court. The District Munsif overruled them all. She then went on appeal to the Subordinate Judge, who disposed of two of her contentions, including this one that execution was barred by Section 48 of the Code, and dismissed her appeal. She has therefore come to this Court on second appeal.
2. The contention before us is that in execution proceedings, if the judgment-debtor dies while the proceedings are pending, no legal representative of the judgment-debtor can be brought on record in those proceedings, but a new execution petition has to be presented. It is urged that in the Code there is no procedure for adding the legal representative of a judgment-debtor in the course of an execution petition. If that is so, then Ramachandrayya's widow could not be added in E.P. No. 125 of 1924, which was launched against Ramachandrayya himself, and by the time the application was made to take proceedings against the widow in E.A. No. 543 of 1924, it was too late to start a new execution petition because 12 years from the date of the decree had elapsed. It will be seen therefore that, unless the decree-holder is entitled, when his judgment-debtor dies in the course of execution proceedings, to bring on record the judgment-debtor's legal representative in the execution proceedings already initiated, the decree-holder in this case must fail.
3. It may be noticed that the general principles of the Code of Civil Procedure are that, if a party can take proceedings against another person and that person dies, the remedy does not lapse but proceedings may be taken against the dead person's representative. Section 146 of the Code lays down that
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.
4. So far as suits are concerned, some of course lapse with the death of the defendant, and the right of suit does not survive; but in the majority of cases this is not so. And, if a decree has been made, Section 50 of the Code provides:
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 representatives of the deceased.
5. In such cases the personal remedy is gone; but the remedy against the judgment-debtor's estate remains. Now it cannot be denied, I think, that the practice in the Courts of this Presidency-and, I believe, of the rest of India-for many years has been to allow legal representatives of deceased judgment-debtors to be brought on record in subsisting execution petitions and to 'allow those petitions to be prosecuted against the estate of the judgment-debtors represented by the legal representatives so brought on. But it is urged for the appellant, Ramachandrayya's widow, that the only machinery provided by the Code for bringing legal representatives on the record is to be found in Order 22. Rules 3 and 4 of that Order provide for bringing on record representatives of plaintiffs or defendants who die in the course of a suit in order that the suit may be prosecuted by or against the representatives to a finish; and Rule 11 of that Order applies that procedure to appeals, Then at the end of the Order there is Rule 12, which says that nothing in Rules 3 or 4 shall apply to execution proceedings. As Mr. Satyanarayana Rao has pointed out for the appellant, those rules were considered by Coutts Trotter, Chief Justice and Curgenven, J., in Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) Mad. 1 : 51 M.L.J. 745, in which they decided that the legal representative of a decree-holder who has died during the pendency of an execution petition filed by him cannot be substituted in his place in the execution petition and be allowed to continue it, but that he must start a new execution petition if that is available. That result was reached by the learned Judges by interpreting the rules of Order 22. As I have said, it is in conflict with the long-established practice of the Courts of this Presidency; and it will be seen that the decision involves some very awkward, inconvenient and even unjust consequences. If an execution petition is in progress and an attachment has been made and then the judgment-debtor dies, according to the principle adopted in Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) Mad. 1 : 51 M.L.J. 745, that petition comes to an end and the attachment must go. The accident that the judgment-debtor has died may therefore throw a most serious obstacle in the way of a diligent decree-holder. In the same way persons who have come into those execution proceedings for rateable distribution in a proper way may be entirely defeated. And, if 'the decision is pressed to its logical conclusion, when a judgment-debtor dies during the pendency of execution proceedings which have been taken on appeal or second appeal, the result will be that the whole proceedings fall to the ground and even at that late stage a new execution petition has to be started. It happened that soon after the decision in Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) Mad. 1 : 51 M.L.J. 745, the question whether it could be extended to appeals in execution matters came before Wallace and Tiruvenkatachariar, JJ., in Sundayee Ammal v. Krishnan Chetty I.L.R. (1928) Mad. 858 : 55 M.L.J. 497; and, although they did not definitely say they disagreed with the decision in Palaniappa Chettiar v. Alliammai Achi I.L.R. (1926) Mad. 1 : 51 M.L.J. 745 they indicated, if I may say so with respect, something very like it, and at any rate they refused to extend its principle to appeals in execution matters. And again, in cases such as the one before us, if a decree-holder were properly and legally prosecuting the execution of his decree by a petition put in near the end of the 12 years allowed by Section 48 of the Code, then by the accident of the judgment-debtor dying a day after the 12 years expired he for no fault of his own would be entirely defeated. Those are very curious results to my mind-unreasonable and unjust results. It is not clear whether they were before the minds of Coutts Trotter, C.J. and Curgenven, J., when they decided Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) Mad. 1 : 51 M.L.J. 745.
6. Now is there any reason why legal representatives should not be brought on record in execution petitions No reason has been suggested in the arguments before us, no justification for making the law in that way. If that is the law, what has been suggested for the appellant in effect is that it. is a strange eccentricity of the Legislature: Rule 12 of Order 22 of the Code has. made it so in spite of the principles of the Code expressed in Sections 50 and 146. That is very curious, if it is so. If it was the intention of the Legislature to enact that in execution proceedings legal representatives should never be brought on record, but that, when a judgment-debtor or a decree-holder died, new execution petitions should always be started, one would have expected that very important provision to be put into the body of the Code itself. There is nothing of the sort in the body of the Code; but this rule which it is suggested has that effect is to be found in Schedule I, which contains rules subject to amendment by the various High Courts of the country. Indeed, speaking for myself, if I thought that Rule 12 of Order 22 really had the effect that has been suggested, I should not hesitate to propose that this Court should with the consent of the Local Government amend it, as would be within our powers.
7. But, if we examine, Order 22, do these rules really have the effect that is suggested? Rule 12 runs:
Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.
8. Now it will be seen that the rule does not say that legal representatives shall never be brought on record in execution proceedings. If that was meant, I do not understand why it was not so stated directly. What Rule 12 does say is, so far as we are concerned with it, that nothing in Rules 3 and 4 of the Order shall apply to proceedings in execution of a decree or order. What is it that Rule 4, with which we are more immediately concerned in this case, says? It provides that, when a defendant dies in the course of a suit and the right to sue survives, the Court on an application made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit; and then in Sub-rule (3) comes an important provision-
Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant;
and, as we know, the time allowed by law is very brief, only 90 days. Rule 3 contains similar provisions relating to the death of the plaintiff. Well, Rule 12 says those provisions shall not apply to execution proceedings. What is the result of that? If we take Rule 4 and Rule 12 together in their literal meaning, it amounts to this: if instead of a defendant dying in the course of a suit a judgment-debtor dies while an execution petition against him is pending, then the provision in Rule 4 that on an application the Court is bound to bring the legal representative of the deceased person on record does not apply; and it also means that, if no application is made to bring a legal representative On record within the time allowed, the provision that the proceedings abate does not apply. That is the literal meaning of saying that Rule 4 does not apply to execution proceedings. I think, if we examine the matter, it is not unreasonable that the rules in regard to suits should be different from the rules in regard to execution. If a suit is going on in a Court, the Court is interested in seeing that that suit is disposed of promptly, both for the sake of its own business and out of fairness to other parties concerned. It is reasonable that, if a defendant dies and the right to sue survives, the plaintiff should be required under a penalty to make up his mind promptly whether he is going to continue to trouble the Court with that suit. It' would be unreasonable that the suit should be left for a very long time pending on the Court's file while the plaintiff made up his mind what he was going to do about it, having already launched it. But, when we come to execution proceedings, after a decision has been given between the parties and a decree has been made, the Court is not interested in urging the decree-holder to press on with his execution. It matters nothing to the Court if the decree-holder takes the full time allowed by law for his execution proceedings or drops them altogether. There is no reason to introduce a provision that, if a decree-holder does not execute his decree promptly, the whole execution shall abate and he shall lose his decree. There would be no object in such a provision. Nor is it really necessary that there should be such a provision even in regard to any particular execution petition. If the decree-holder applies to execute the decree by arrest and the judgment-debtor dies, that matter is finished. If he applies to execute by attachment and sale and the judgment-debtor dies, and the decree-holder is dilatory and does not do anything in the way of proceeding with his execution petition, it is always open to the Court to say that he is in default and to raise the attachment. Apart from that the fact that he does not prosecute his execution petition does not inconvenience or trouble any one. So that, although it is perfectly reasonable that there should be penalties provided by our procedure to make plaintiffs prosecute their suits promptly, even if a defendant dies, by taking steps to bring the legal representative on record subject to a very severe penalty if they do not take those steps with promptness, there is no necessity for such a procedure in regard to execution proceedings. In that view of the matter Rules 3 and 4 of Order 22 of the Code are not necessary for execution proceedings and are not really suitable to them; and I think it extremely probable that is why the Legislature provided in Rule 12 of Order 22 that they should not apply to execution proceedings.
9. It has been asked by Mr. Satyanarayana Rao, if Rules 3 and 4 of Order 22 do not apply to execution proceedings, where is the machinery for bringing the legal representatives on record at all in execution proceedings? He suggests that it is only because there is machinery provided in Order 22 that legal representatives can be brought on record in suits and appeals, and that, if that machinery is absent so far as execution proceedings are concerned, then there is no means of bringing legal representatives on record in them. But is it right to assume that explicit machinery must be provided by the Code for bringing legal representatives on record? If Rules 3 and 4 of Order 22 were not there, would it follow that no legal representatives could be brought on record in suits or appeals? We have to remember that there is Section 146 of the Code, which provides the principle. Supposing for a moment that Rules 3 and 4 of Order 22 were not there, in the face of Section 146 could we assume that, if a defendant died in the course of a suit, the only thing that a plaintiff could do would be to start a new suit, which might well be time-barred then Would that be the result? Surely the Courts are not so helpless as that. As Mr. Justice Kumaraswami Sastri said in Muthiah Chettiar v. Govinddoss Krishnadoss I.L.R. (1921) M. 919 : 41 M.L.J. 316,
Where rights are conferred by the sections of the Code and no provision is made for a particular set of facts I think Courts ought to apply the provisions of the rules which are nearest in point, with such modifications as may be necessary, and not refuse relief on the ground that the legislature has not made provision for a particular case, though within the generality of a section of the Code, The object of Section 151 is to give such power to Courts and to prevent a failure of justice.
10. I think the correct view is that, if Rules 3 and 4 of Order 22 were not there, still, if a defendant died and the right to sue survived, the plaintiff could bring on record the legal representative of the defendant, and we should have to let him do so. Otherwise we should be denying him his legal remedy. But in the absence of those rules he would have three years for doing it under Article 181 of the Limitation Act. That would be very inconveniently long; and for that reason Rules 3 and 4 of Order 22 have been enacted to ensure that such a long time is, not occupied but that, if legal representatives are to be brought on record, they are brought on record promptly subject to the penalty of abatement when that is not done. Indeed it may be said that those rules do not create the right to bring legal representatives on record but penalise those who do not exercise that right promptly.
11. But it is a fact that the learned Judges in Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 took a different view of the position, as they said in effect that Rule 12 of Order 22 settled the matter, and without going further into it they decided that the practice of our Courts long in vogue was illegal. But, if I may say so with great respect, I doubt whether they examined the actual wording of Rule 12 with sufficient care. They said:
By Rule 12 this rule (that is Rule 3) is expressly rendered inapplicable to execution proceedings, an expression of intention on the part of the framers of the rules so clear that it is really unnecessary to look further;
and therefore they did not look into the consequences nor consider the existing practice nor refer to the earlier cases on the subject. It is possible that certain important eases were not brought to their notice; at any rate they are not mentioned in their judgment. But with all respect I cannot agree with their view of the actual wording of Rule 12. It does not lay down that no legal representative shall be brought on record in execution proceedings but merely states that nothing in Rules 3, 4 and 8 of that order shall apply to execution proceedings. The meaning attributed to Rule 12 by the learned Judges is not explicitly expressed in it nor, as far as I can see, necessarily implied in it.
12. One of the important cases not mentioned by the learned Judges is Purushottam v. Rajbai I.L.R. (1909) B. 142. That was a case dealing with the Code of 1882. It was the view of the Bombay High Court that the sections of that Code which correspond with the rules now in Order 22 were not applicable to execution proceedings. Nevertheless in that case the learned Bombay Judges, holding the view that those sections were not applicable to execution proceedings, laid down that in an execution petition, if the judgment-debtor died, his legal representative could be brought on record, the very point before us. Bhagwan Das v. Jugul Kishore I.L.R. (1920) A. 570 is perhaps an even more interesting case because it deals with the present Code. There again in spite of Rule 12 of Order 22 having stated that nothing in Rules 3 and 4 shall apply to execution petitions, the learned Judges of the Allahabad High Court decided that there was still a power in the Court to bring on record the legal representative of the deceased judgment-debtor in the course of an existing execution petition. And a similar view was expressed by two learned Judges of the Calcutta High Court Monmotho Nath Mitter v. Rakal Chandra Tewary (1909) 10 C.L.J. 396 in respect of a decree-holder dying in the course of an execution petition. That is a case which would have been of even more interest to the learned Chief Justice and Curgenven, J. if it had been brought to their notice in the argument in Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745. With the greatest respect it appears to me that the value of the decision in Palaniappa. Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 cannot but be affected by the fact that those earlier decisions were not noticed. However we are not dealing with exactly the same question here as was before the learned Judges in Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 though the principle of their decision would apply to this case. That case, as I have said, concerned a decree-holder. He was actually a transferee decree-holder, who died in the course of execution proceedings, and the question was whether his legal representative could be brought on to continue the same execution petition. Here we are dealing with a slightly different question, whether, when a judgment-debtor dies in the course of execution proceedings, his legal representative can be brought on record in those very execution proceedings. As I have mentioned, Wallace and Tiruvenkatachariar, JJ., in Sundayee Animal v. Krishnan Chetty I.L.R. (1928) M. 858 : 55 M.L.J. 497 were not prepared to press the decision in Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 to its logical conclusion so far as appeals in execution matters were concerned. But we get much nearer to the question now before us in the opinion expressed by Wallace and Madhavan Nair, JJ., in Ramanathan Chettiar v. Ramanathan Chettiar (1928) 30 L.W. 995. There they definitely express the opinion that the decision in Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 could not be applied to judgment-debtors. And Jackson, J., sitting alone, in C.M.S.A. No. 140 of 1928 expressly refused to apply Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 to the case of a judgment-debtor. As he remarked in that case, the Privy Council have given us guidance in this matter in Jang Bahadur v. Bank of Upper India, Ltd. (1928) L.R. 55 IndAp 227 : I.L.R. 3 Luck. 314 : 55 M.L.J. 545 (P.C.) It is there remarked:
If the judgment-debtor dies before any such certificate is issued the Court of transfer does not lose its jurisdiction over the execution proceeding, which docs not abate by reason of the death. But before execution can proceed against the legal representative of the deceased judgment-debtor the decree-holder must get an order for substitution from the Court which passed the decree.
13. There is an indication that in the view of the Privy Council substitution of the legal representative for a deceased judgment-debtor is possible, and, as I understand the passage, substitution in an existing execution petition. Now, three learned Judges of this Court having dissented from the principle of Pnlaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 and their dissent appearing to be supported by the opinion of their Lordships of the Privy Council, 1 do not think we need feel ourselves bound by Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 in this case. That being so, in my opinion there is no doubt that Ramachandrayya's widow could properly be brought on record as his representative in E.P. No. 125 of 1924, which was presented within 12 years of the date of the decree, and therefore Section 48 of the code, which bars fresh applications for execution made more than 12 years from the date of the decree, is no obstacle in the decree-holder's way.
14. As I have said, there were other objections to the execution of the decree raised by Ramachandrayya's widow before the Lower Courts. Her objection that the previous execution petitions had not been in accordance with law has not been pressed before us. The learned Subordinate Judge thought it unnecessary to go into what he called 'the merits of the case,' as he was of opinion that, when the District Munsif brought the widow on record as Ramachandrayya's legal representative before making his final order and she did not appeal against that, her present contentions became res judicata against her, a view which cannot be supported, and that Section 128 of the Transfer of Property Act could be applied in these proceedings, which contention is not pressed for the decree-holder before us. By 'the merits' the learned Subordinate Judge apparently referred to the widow's contention that she had received the property concerned by a gift from Ramachandrayya in 1910. The decree-holder maintained that that gift was a sham transfer. The learned Judge has not decided that question. It is not enough merely to bring Ramachandrayya's widow on record as his legal representative: the decree-holder has to make out his right to proceed against the property as part of Ramachandrayya's estate. Therefore, although I do not agree with the contention urged for the appellant here, it appears to me necessary that this execution petition should go back to the Subordinate Judge for fresh disposal on the remaining question, whether the property concerned is Ramachandrayya's property, that is, part of his estate. 1 therefore propose that the order of the learned Subordinate Judge be set aside and the appeal before him be remanded to him for fresh disposal and that the costs of this appeal should abide and follow the Subordinate Judge's decision.
Anantakrishna Aiyar, J.
15. I agree. As this case raises a question of importance, I directed, when it came on for hearing before me, that it should be posted before a Bench. I should like to add a few words of my own, having regard to the importance of the question.
16. After obtaining a money decree in O.S. No. 179 of 1912, the decree-holder filed several petitions for execution of the decree. The last of such execution petitions with which we are now concerned here was filed on the 18th February, 1924-the date of the decree being 29th February, 1912. The judgment-debtor having been absent from the country and not having been heard of for 8 ,or 9 years, the decree-holder applied to have his legal representative-his widow-brought ,on the record with a view to proceed with his main execution petition. When he made that application on 5th July, 1924, more than 12 years had elapsed from the date of the decree; the legal representative of the judgment-debtor raised the; objection that execution of the decree was barred by virtue of the provisions of Section 48 of the Code of Civil Procedure. It was also argued on behalf of the. legal representative that in such circumstances the proper procedure that the decree-holder should adopt was to file a fresh execution petition, and that it was not open to him, in the course of the execution petition that was pending, to apply for orders regarding the substitution of the legal representative of the judgment-debtor. In support of this contention, the decision in Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 was relied on. The Lower Courts, however, decided against the contention of the legal representative of the judgment-debtor, and allowed execution to issue on the ground that the question was res judicata by virtue of a prior order against which no appeal had been preferred by the judgment-debtor's legal representative. Therefore this Civil Miscellaneous Second Appeal has been preferred by the legal representative of the judgment-debtor.
17. I may at once state that the Lower Appellate Court's view that the question is res judicata has not been sought to be supported before us (and, in my view, quite properly) by the learned advocate for the respondent. I proceed to consider the two main contentions raised by the appellant. It will be convenient to take the second contention first.
18. The second of the two main contentions that were raised before us is based on the decision of this Court in the case reported in Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745; and though that case related to the death of the decree-holder, and not, as is the case before us, of the judgment-debtor, yet as many of the arguments applicable to the case of the death of a decree-holder would have weight in considering the decision of a similar question arising in the case of the death of a judgment-debtor, we were anxious to consider how exactly the matter stands having regard to the provisions of the Code and to the decisions of Courts here and elsewhere. Before proceeding to discuss the question further, I may mention that the; decision in Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 worked a very important change in the practice which was till then prevailing here, having regard to the consequences of that decision so far as the legal representative of the decree-holder was concerned. If the only remedy open to the legal representative of a deceased decree-holder in such a case be 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 advantage which a decree-holder has, as a result of his having filed 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, so that the decision in Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 did not only affect the practice as it prevailed till then, but also substantially affected the right of the legal representative of the decree-holder. All the same, if such results necessarily or properly follow from the provisions of the Code, then, any remedy to avoid such results should be sought elsewhere. In Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 the learned Judge sitting on the Original Side of this Court had an execution petition pending before him. When such petition was pending, the decree-holder died and an application was made to have the deceased decree-holder's legal representative brought on the record. The learned Judge passed orders substituting the name of the legal representative in the place of the decree-holder, with a view to proceed further with the execution petition that was pending. The matter was taken on appeal by the judgment-debtor. The two learned Judges, before whom the appeal came, reversed the trial Judge's order and held that it followed from the provisions of Order 22 of the Code of Civil Procedure that the only remedy open to the legal representative of a decree-holder in such circumstances was to file a fresh execution petition. The grounds on which the judgment was based appear at page 4 of the report. In answer to the contention that under Section 146 and under Order 22, Rule 16 it was open to a person on whom rights devolved by operation of law, etc., to take steps to carry on further proceedings, their Lordships observed as follows:
At the same time we do not accept the argument that because this rule (O. 21, Rule 16) lays one method of proceeding with execution it excludes any other method. For an answer to the question raised, it is necessary to go to Order 22, which relates to death, marriage and insolvency of parties. Rules 3 and 4 of this Order respectively provide for the substitution during the course of a suit of the legal representative for a deceased plaintiff or a deceased defendant; and construing the word 'suit' so as to embrace execution proceedings, Rule 3 would furnish the required authority. By Rule 12, however, this rule (with two others) is expressly rendered inapplicable to execution proceedings, an expression of intention on the part of the framers of the rules so clear that it is really unnecessary to look further.
19. Holding therefore that the case before the Court was specifically dealt with in Rules 3 and 4 of Order 22 and that Section 146 of the Code of Civil Procedure could not apply to such a case, the Court came to the conclusion that it was not open to the legal representative of the decree-holder to apply to have his name substituted in the place of the deceased decree-holder in the execution petition already pending.
20. I have quoted the material portion of the judgment of the Court, and I gather that the basis of the decision is Rule 12 of Order 22 read with Rules 3 and 4. Turning to Rules 3, 4 and 8, what one finds is that the Legislature has provided for abatement of suits if the plaintiff who is dominus litus in such matters should not proceed to take steps to bring the legal representative of a deceased defendant or a deceased plaintiff, as the case might be, within the time allowed by law. The suit is declared to have abated with reference to the deceased parties. Now to declare that a suit abates wholly or in part is to impose a penalty upon a person for not taking steps which the law requires him to take in proper time. Order 22, Rule 12, as I read it, only declares that the Legislature did not think it proper to impose upon decree-holders this penalty, and I am not able to gather anything further from the provisions of Order 22. One may recall to one's mind several rules of practice which are made applicable to suits, but which are not applicable to execution petition's. It is not necessary for me to elaborate on this matter. If a plaintiff should not appear on the date fixed for the hearing of his suit, then the suit is dismissed. It is not open to him to file a fresh suit except under particular circumstances. His ordinary remedy is to have the old suit restored to the file and to have the relief prayed for therein granted to him in that suit. But in the case of execution petitions, greater latitude has been, for obvious reasons, allowed to a decree-holder. A decree-holder who does not promptly and expeditiously carry on proceedings in execution but allows his petition to be dismissed because proper steps have not been taken by him is not thereby denied, the relief claimed for, for all time. He* is, subject to question of limitation which I am not considering here, entitled to file a fresh execution petition seeking the same reliefs. As I said, there are also other rules of procedure applicable to suits but not applicable to execution petitions. These rules have been recognised by Indian Courts long prior to the enactment of Order 22, Rule 12 in the Code of 1908. It has been laid down that, though a decree-holder has, just like a plaintiff, the right to have the legal representative of the deceased judgment-debtor substituted in the original execution petition and to go on with the same till complete effectual relief is afforded to him in execution, he is not bound to do so, and that principle of abatement does not apply to execution petitions. In fact, that disability is not cast on decree-holders in respect of execution petitions ; but decree-holder's legal representatives are given an option, of which they may avail themselves or not, in the circumstances. To construe that Order 22, Rule 12 casts an obligation on the decree-holders in such circumstances and practically applies to them the principle of abatement-(with the only difference that the filing of a fresh execution petition is allowed)-would, I think, work a great change in the procedure relating to execution of decrees as it was understood at the time when the new Code was passed; and, in the absence of definite indication on the part of the Legislature making such an intention clear, I do not think we would be justified in inferring that that was the intention of the Legislature.
21. Now, this question, namely, how far the doctrine of abatement applied to execution petitions and whether on the death of a judgment-debtor or a decree-holder pending an execution petition, applications are maintainable for the substitution of the legal representative of the deceased, came for consideration before the Courts in India long before the Code of 1908. The earliest case relating to the death of a decree-holder would seem to be the case in Gulabdas v. Lakshman Narhar I.L.R. (1879) B. 221 referred to in Bhagwan Das v. Jugul Kishore I.L.R. (1920) A.570 Two cases relating to the death of judgment-debtors during the pendency of execution petitions were brought to our notice. In Purushottam v. Rajbai I.L.R. (1909) B. 142 the learned Chief Justice of the Bombay High Court and Batchelor, J., had a case where the judgment-debtor died before execution of the decree was completed. They held that, when execution proceedings were commenced against the judgment-debtor, they could be continued after his death by substituting the name of the legal representative in the place of that of the deceased judgment-debtor in the execution petition, and that it was not necessary to file a fresh execution petition under the provisions of Section 235 of the prior Code. They remarked at page 151 that an earlier case quoted before them decided 'that sections 361 to 372 of the Code did not relate to execution proceedings.' After discussing the matter further they observed:
We think therefore that there is no objection to the continuance of the execution proceeding against the present respondent without fresh application under Section 235.
22. Thus, it is clear that, even before the Legislature enacted under Order 22, Rule 12 that the provisions of Rules 3, 4 and 8 do not apply to execution proceedings, Courts had decided that the corresponding provisions of the prior Code did not apply to execution proceedings, and in spite of the same, Courts have exercised their jurisdiction in the matter by allowing the name of the legal representative to be substituted in the place of the deceased party in the original execution petition, and by directing that the proceedings in execution should proceed further, and that it was not necessary to file a fresh execution petition.
23. After the Code of 1908, the question was raised before the Allahabad High Court in the case reported in Bhagwan Das v. Jugul Kishore I.L.R. (1920) A. 570. There, after the attachment of the judgment-debtor's property in execution of a money decree, the judgment-debtor died. The Court held that the decree-holder was not bound, on peril of his execution petition abating, to bring upon the record the legal representative of the judgment-debtor and that, so long' as the execution of the decree was not barred by limitation, he could execute it against the legal representative of the deceased judgment-debtor. The learned Judges went further and added:
On the other hand, there is no bar to the decree-holder, if so advised, in applying to have the legal representative made a party to the execution proceedings.
24. It should be noticed that in the case of a suit it is obligatory on the plaintiff or his legal representative to file the necessary application in time to avoid abatement, and it is not open to him to file a fresh plaint. In the case of execution petitions, the Court held in Bhagwan Das v. Jugul Kishore I.L.R. (1920) A. 570 that while it was open to the decree-holder to apply in the pending execution petition to have the legal representative's name substituted, it was also open to him, if he was so advised, and if there be no bar of limitation, or any other bar, to drop the pending proceedings and to file a fresh execution petition. At page 572 the learned Judges observed:
Rule 12 distinctly shows that this rule shall not apply to execution proceedings, that is, that it is not compulsory upon a decree-holder to have the names of the heirs brought upon the record in that way, on penalty of his decree abating. It is open to him to apply under Section 50 of the Act for execution of his decree as against the heirs. But there is nothing in the Code of Civil Procedure which lays it down that a Court cannot bring the heirs of a judgment-debtor upon the record in execution proceedings and continue with them, nor is there anything in the law which lays it down that on the death of the judgment-debtor any pending execution proceeding shall abate.
25. They added later on:
It is nowhere held that execution proceedings must abate on the death of the judgment-debtor. If the decision of the Court below be correct, then, on the abatement of these proceedings, the attachment would cease and it would be open to the heirs to dispose of the property before it could be re-attached under a fresh execution proceeding.
26. The matter was considered by the Calcutta High Court in the case reported in Monmotho Nath Mitter v. Rakal Chandra Tewary (1909) 10 C.L.J. 396. I should like to quote one or two sentences from the judgment of Mookerjee, J., in that case at page 399. A preliminary objection was taken before the learned Judge that upon the death of the applicant, her legal representatives were not entitled to prosecute the appeal; and, in support of that proposition, reliance was placed upon Order 22, Rule 12 of the Code. The learned Judge characterised the objection in the following terms:
This preliminary objection is of a somewhat novel character and would not be worthy of serious consideration but for the insistence with which it has been pressed.
27. The learned Judge, after stating that even before the enactment of the present Code, Courts had held that the corresponding-provisions of the prior Code did not apply to execution proceedings and that Courts had power to bring the legal representatives of deceased decree-holders and judgment-debtors on record in pending execution petitions, observed that 'the effect of Rule 12 of Order 22 does not in any way nullify that practice.' The Privy Council in the case reported in Jang Bahadur v. Bank of Upper India, Ltd. (1928) L.R. 55 IndAp 227 : I.L.R. 3 Luck. 314 : 55 M.L.J. 545 (P.C.) had occasion to note the practice in such matters. At page 233 in Vol. 55, Indian Appeals, their Lordships observed as follows:
If the judgment-debtor dies before any such certificate is issued (certificate as regards complete satisfaction of the decree), the Court of transfer does not lose its jurisdiction over the execution proceeding, which does not abate by reason of the death. But before execution can proceed against the legal representative of the deceased judgment-debtor, the decree-holder must get an order for substitution from the Court which passed the decree. This is a matter of procedure and not of jurisdiction.
28. The passage quoted from Jang Bahadur v. Bank of Upper India (1928) L.R. 55 IndAp 227 : I.L.R. 3 Luck. 314 : 55 M.L.J. 545 (P.C.) would seem to lay it down as clear law that execution proceedings do not abate by reason of the death of any of the parties to the same, and also that in the case of death of the judgment-debtor during the pendency of the execution petition the decree-holder must get 'an order for substitution' from the proper Court. This is clearly against the contention that in such cases execution proceedings 'abate' (or, as it was said 'lapse' or 'in any other way become infructuous'), and that the only remedy open to the decree-holder in such circumstances is to file a fresh petition for execution;
29. It further seems to me that certain observations made by Sir John Wallis, C.J. and Kumaraswami Sastri, J., in the Full Bench case, Muthiah Chettiar v. Gomnddoss Krishnadoss I.L.R. (1921) M. 919 : 41 M.L.J. 316 furnish answers to the contentions raised before us by Mr. P. Satyanarayana Rao, the learned advocate for the appellant. At page 924 this is what the learned Chief Justice says:
It (the Code) expressly provides by Order 22, Rule 12' that nothing in Rules 3, 4 and 8 of that Order, which provide for abatements, shall apply to execution.
30. I take that to be a pronouncement (on a question on which there have been prior pronouncements of Courts to similar effect) that the doctrine of abatement does not apply to execution proceedings, and that is what is laid down in Rule 12 of Order 22. If that be so, there is absolutely no ground for putting a construction on Rule 12 which not only is contrary to the settled practice of Courts but which also involves at the same time serious consequences prejudicial to decree-holders. But the learned advocate for the appellant asked, what is the provision of the Code which would authorise the Court to pass 'orders of substitution' in such cases To that question, Mr. Justice Kumaraswami Sastri's opinion delivered in the Full Bench case contains the necessary answer. This is what the learned Judge says at p. 932:
Where rights are conferred by the sections of the Code and no provision is made for a particular set of facts I think Courts ought to apply the provisions of the rules which are nearest in point, with such modifications as may be necessary, and not refuse relief on the ground that the Legislature has not made provision for a particular case, though within the generality of a section of the Code. The object of Section 151 is to give such power to Courts and to prevent a failure of justice.
31. As the Code gives a decree-holder the right to execute his decree till complete satisfaction is rendered if the circumstances of the judgment-debtor permit the same, (subject to the law of limitation and some other provisions enacted in this behalf), it is open to the decree-holder to seek the assistance of the Court in all matters in which such assistance is necessary to give him the benefit of the complete realisation of his decree; and if the Court finds that no specific provisions exist in the Code in respect of any contingency that might happen, it is open to the Court to mould its procedure according to the equities of the case. It therefore seems to me that having regard to the principles applicable to the case, the prior practice, and the decisions of the various Courts on this question, one should avoid the consequences which would follow if we accept the appellant's contention, if it be legitimately possible to do so. I am glad that, after elaborate and learned arguments that were addressed to us by the learned advocates in this case, materials have been placed before us which enable us to answer the question in a way which would avoid injustice.
32. Having said so much with reference to the general principles applicable to procedure applicable to execution, I proceed to note that our attention was drawn to a decision in Sundayee Ammal v. Krishnan Chetty I.L.R. (1928) M. 858 : 55 M.L.J. 497 by Mr. Justice Wallace and Mr. Justice Thiruvenkatachariar, where the applicability of Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 to an execution appeal was raised. As I read the judgment of the learned Judges, they apparently did not feel quite sure about the ground on which Palaniappa Chettiar v. Valliamniai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745 was based, but they thought that, for disposal of the matter immediately before them, it was enough to express the opinion that they would not be prepared to extend the principle of the decision in Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745. But the matter came again before Mr. Justice Wallace and Mr. Justice Madhavan Nair in Ramanathan, Chettiar v. Ramanathan Chettiar (1928) 30 L.W. 995. It is said that the observations made by the learned Judges in that case were not strictly 'necessary for the decision of the case. But they were making observations on a question of practice, and, for my part, I attach great weight to pronouncements from learned Judges on matters, of procedure. Now, at pp. 1004 and 1005 in Ramanathan Chettiar v. Ramanathan Chettiar (1928) 30 L.W. 995 there are passages in the judgment from which it is 'clear that the learned Judges were not prepared to accept the soundness of the principle laid down in Palaniappa Chettiar v. Vallammai Achi I.L.R. (1926) M. 1 : 51 M.L.J. 745. They observed:
The Court has clearly jurisdiction to go on with the execution proceedings and to receive an application to bring on necessary parties if such are necessary. Does then the death of original judgment-debtor during the pendency of the execution proceedings entail in law the issue of a fresh notice to his legal representatives?
33. After discussing the question further, they expressed their view in the following terms:
It is obviously not the law that the moment the judgment-debtor in an execution petition dies, the Court loses jurisdiction in the matter, and the execution petition collapses.
34. These observations related to the death of the judgment-debtor, pending the execution petition, and therefore are exactly applicable to the case before us. Mr. Justice Jackson sitting as a single Judge also expressed similar views in C.M.S.A. No. 140 of 1928.
35. Having regard to these later pronouncements made' by learned Judges of this Court, to the previous law and practice relating to such important matter as proceedings in execution of decrees, to the opinions expressed by learned Judges of Bombay, Allahabad and Calcutta, with no course of decisions contra in our Court, and, finally,-(and this should by itself be conclusive of the question)-having regard to the passages quoted from the decision of the Privy Council in Jang Bahadur v. Hank of Upper India, Ltd. (1928) L.R. 55 IndAp 227 : I.L.R. 3 Luck. 314 : 55 M.L.J. 545 (P.C.). I think that we should not be justified in reading Order 22, Rule 12 in the way we are asked to do by the learned advocate for the appellant.
36. The other main contention raised by the learned advocate for the appellant that the application in question filed in the execution petition is barred under the provisions of Section 48 of the Code, in my opinion, also fails, because Section 48 of the Code would apply only when a fresh execution petition has to be filed, and not when an execution application is made in a pending execution petition. (The rules framed by this High Court draw a distinction between an Execution Petition (E.P.) and an Execution Application (E.A.), the latter term being applied to the media by which further and other steps are sought to be taken in the main matter of execution and in a pending execution petition). I therefore overrule the main contentions raised by the learned advocate for the appellant.
37. I also agree with my learned brother that the decision of the Lower Appellate Court on the question of res judicata is not sustainable in the circumstances, and that the appeal must be remanded to the Lower Appellate Court for fresh disposal. I also agree in the order as to costs proposed by him.