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Sailendra Nath Ghose and ors. Vs. Surendra Nath De and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1930Cal614,129Ind.Cas.572
AppellantSailendra Nath Ghose and ors.
RespondentSurendra Nath De and anr.
Cases ReferredMonorath Das v. Ambika Kanta Bose
Excerpt:
- .....21, rule 56, civil p.c. in january 1927 the original decree-holder died. on 14th february 1927 the legal representatives of the deceased decree-holder being his three sons, all minors, represented by their mother lakshmi mani dasi, entered appearance and prayed to be substituted in the place of the said deceased. on 8th march 1928 the substitution was ordered in the presence of the judgment-debtor. on 2nd april 1928 one surendra nath dey filed objection under section 47, civil p.c., alleging that he had a claim. an objection formulated in the following way namely that the decree-holder having died the heirs could not be substituted in the execution case, was urged, and the learned judge, holding in view of order 22, rule 12 the contention to be sound, ordered that the decree-holder's.....
Judgment:

1. This appeal was tiled by one Lakshmi Mani Dasi, as decree-holder appellant against the judgment-debtor and a claimant one Surendra Nath De as respondents. The application for execution was filed by the original' decree-holder. The decree was one for money passed by the High Court on its original side on 19th January 1925. It was transferred for execution to the Court of the District Judge of Howrah, to which a certificate of non-satisfaction was sent by the High Court, original side. The execution petition was registered in the Court of the Additional District Judge on 23rd August 1926. Under Order 21, Rule 22, Civil P.C., notices were issued, and then notices under Order 21, Rule 56, Civil P.C. In January 1927 the original decree-holder died. On 14th February 1927 the legal representatives of the deceased decree-holder being his three sons, all minors, represented by their mother Lakshmi Mani Dasi, entered appearance and prayed to be substituted in the place of the said deceased. On 8th March 1928 the substitution was ordered in the presence of the judgment-debtor. On 2nd April 1928 one Surendra Nath Dey filed objection under Section 47, Civil P.C., alleging that he had a claim. An objection formulated in the following way namely that the decree-holder having died the heirs could not be substituted in the execution case, was urged, and the learned Judge, holding in view of Order 22, Rule 12 the contention to be sound, ordered that the decree-holder's heirs must file a new application for execution and dismissed the execution case by an order dated 3rd May 1928. From this order the present appeal was taken. As already stated Lakshmi Mani who was not personally interested in the decree, but was only the guardian of her sons in the proceedings, filed the appeal on her own behalf. This was due to a bona fide mistake on the part of her legal adviser who was misled by certain certified copies that were placed before him. The appeal as originally filed is incompetent. It is dismissed. But in view of the exceptional circumstances of the case we allow the heirs of the decree-holders to file a proper appeal now and the memorandum of that appeal being before us, and all the parties being represented therein, we have heard them.

2. Order 22, Rule 12, Civil P.C., lays down that the provisions as to abatement of a suit or appeal in consequence of death or insolvency of a party do not apply to execution proceedings. It follows therefore that the provision is for the benefit of a decree-holder or his heirs and that. the heirs need not take steps for substitution. This is clear from the decision of the Judicial Committee in the case of Kedar Nath Goenka v. Ananta Prasad Singh . There are two courses either of which may be availed of by the heirs, that is to say, that they may apply immediately for carrying on the proceedings in execution of the decree, or they may apply for fresh execution under Order 21, Rule 16, Civil P.C. : Akhoy Kumar Talukdar v. Surendra Lal Pal A.I.R. 1926 Cal. 957. The contention that upon the death of an applicant for execution of decree that his legal representatives are not entitled to carry on the proceedings, and that their only remedy is to initiate a fresh proceeding, and that in the latter event they may be successfully met by the plea of limitation, was overruled in the case of Manmatha Nath Mitter v. Rakhal Chandra Tewary [1910] 3 I.C. 324 (at p. 753 of 14 C.W.N.).

3. The present case is however complicated by the fact that it was the decree of another Court, namely the High Court on its original side, that was being executed by the Howrah Court. In these circumstances it has been contended on behalf of the judgment-debtors-respondents, that the appellants were bound to apply to the Court which passed the decree, namely the original side of the High Court, under. Order 21, Rule 16, Civil P.C. The appellants contend that this rule has no application in this case as it is not a case of transfer by operation of law, but this contention cannot be upheld as transferee by operation of law includes the legal representatives of a deceased decree-holder. Gour Sundar v. Hem [1889] 16 Cal. 355, Midnapore Zemindary Co. Ltd. v. Bhasaram Mandal : AIR1924Cal661 . It has been held by this Court in a well-reasoned judgment by Bannerjee, J., Stevens, J, concurring, that an application by the transferee of a decree for execution after substitution of his name can be entertained only by the Court which passed the decree, and the Court to which the decree has been sent for execution has no jurisdiction to entertain it : Amar Chandra v. Guru Prasanna [1900] 27 Cal. 488. This decision has been approved by the Judicial Committee in the case of Kunwar Jang Bahadur v. Bank of Upper India Ltd. A.I.R. 1928 P.C. 162, in which however their Lordships pointed out that when subtitution is made by the executing Court of the legal representatives of a judgment-debtor deceased since the transfer of a decree it is an irregularity, but the irregularity may be waived by acquiescence, and when it has been waived, the party acquiescing cannot turn round and question the jurisdiction of the executing Court. In a case where a decree-holder dies before the decree is transferred, the legal representatives have to apply not really for substitution but to have their names brought on the record and to have the decree transferred for execution, a procedure that appears to have been followed in the case of Jogendra Chandra Roy v. Sham Das [1909] 36 Cal. 543. In a case where after the decree has already been transferred the death takes place the same procedure may be followed or the legal representatives may apply to the executing Court for carrying on the proceedings, and may subsequently produce from the Court which passed the decree the necessary order under Order 21, Rule 16, Civil P.C., and as has been held in the case of Monorath Das v. Ambika Kanta Bose [1909] 1 I.C. 57, the failure or omission of the legal representatives to produce such an order from the Court which passed the decree at the moment of his application to the executing Court does not entirely vitiate his application to the executing Court.

4. To consider whether the irregularity that has occurred should be treated as fatal in the present case, we must bear in mind that the judgment-debtors took this precise objection on 10th February 1927, and thereafter on 8th March 1928 the executing Court made the order for substitution. The claimant Surendra Nath Dey purporting to have purchased the property on 12th February 1928 took no appeal from this order and put forward the same objection in the same Court. In the circumstances the order of 8th March 1928 must be taken to conclude the matter.

5. The appeal is allowed, but the appellants must pay the respondents costs for the infructuous appeal that was at first filed, heating-fee being assessed at 5 gold mohurs.


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