1. The question which this appeal raises is whether, on the death of a decree-holder who is in course of executing his decree, his legal representative may be substituted in the execution petition and may continue it. The learned Judge has acceded to the request of the widow of the transferee decree-holder to be so brought on in a pending petition, and the judgment-debtors appeal.
2. Although Mr. A. Krishnaswami Aiyar has endeavoured to persuade us that, where a right to pursue a remedy survives, it follows on general principles that a legal representative has a right to continue a proceeding initiated by his predecessor, we have no doubt that the question must be answered by reference to the specific terms of the Code of Civil Procedure. Section 146 of the Code is of no assistance, because it merely enacts that, save as otherwise provided, a proceeding which may be taken by any person may be taken by any other claiming under him. Since a decree-holder may file an execution petition, his legal representative after his death may file one. The competence of a transferee-decree-holder to do this is specially provided for by Order 21, Rule 16, and assuming that that rule applies, by force of the words 'by operation of law', to the case of a representative of a deceased decree-holder, such as we are now dealing with, the matter is carried no further. At the same time, we do not accept the argument that, because this rule allows 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 the '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 a 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. Rule 10 of the same order has, however, been invoked. There has been some difference of judicial opinion [see Sitaramaswami v. Lakshmi I.L.R. (1917) M 510 and Narasimha Muthiah Chettiar v. Govindoss Krishnadoss I.L.R. (1921) M 919 as to whether this rule can be applied to a transfer or devolution of interest after decree but we need not enter into that question because the words with which the rule opens, 'in other cases of an assignment, creation or devolution of any interest,' seem expressly intended to exclude the case of devolution by death, which as we have already observed, is specifically dealt with in Rules 3 and 4.
3. We accordingly allow the appeal and set aside the learned Judge's order. Respondent will pay the appellants' costs of appeal. Money deposited in Court to be refunded to the appellants.