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Annada Prasad Mitra Vs. Sushil Kumar Mandal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal390
AppellantAnnada Prasad Mitra
RespondentSushil Kumar Mandal
Cases ReferredHansraj Gupta v. Official Liquidators of
Excerpt:
- .....there is no provision or machinery provided by the code of civil procedure for substitution of the legal representatives of a deceased decree-holder and as these proceedings can never abate, the heirs or legal representatives can only file a fresh application for execution. this was the view taken by the madras high court in palaniappa chettiar v. valliammai achi ('27) 14 a.i.r. 1927 mad. 184, which was subsequently overruled by a full bench decision of the same court in venkatachalam chetti v. ramaswamy servai ('32) 19 a.i.r. 1932 mad. 73. a somewhat similar view was taken by this court in akshoy kumar v. surendra lal ('26) 13 a.i.r. 1926 cal. 957 where it was held by the learned judges that it was neither competent nor necessary for the legal representatives of a decree-holder to make.....
Judgment:

B.K. Mukherjea, J.

1. These two appeals tire on behalf of the judgment-debtor and they arise out of two analogous proceedings under Section 47, Civil P.C., which were heard together and were disposed of by one and the same judgment in both the Courts below. The material facts are not in controversy and may be shortly stated as follows : There were two rent decrees obtained by one Naba Kishore Mandal as the managing shebait of certain deities against the appellant, Annada Prosad Mitra, one on 31st May 1928, and the other on 23rd June 1934. After certain proceedings with which we are not concerned at present both these decrees were put into execution in the year 1935 and the two execution oases were registered as Cases Nos. 109 and 110 of 1935. In course of these proceedings, sale proclamations were duly issued directing the sales to be held on 10th January 1936. Before the sales were held, Naba Kishore died on 12th November 1935. The matter was reported to the Court and the Court granted several adjournments in order that proper steps might be taken in the matter. As no steps were taken, the two execution oases were dismissed for default on 17th December 1935.

2. It appears from the records that the shebaits of the deities who were fairly large in number took the opinion of the Government Pleader at Alipore as to the proper way of proceeding in the matter and the opinion given was to the effect that all the shebaits together should file a suit for settling a scheme for management of the debutfcer property and get a Receiver appointed in the suit, and the Receiver thus appointed should continue the execution proceedings. Owing to various dissensions amongst the shebaits themselves there was considerable delay in instituting the suit and it was brought only in the year 1938. On 21st December 1938, the present respondent was appointed a Receiver in respect of the debutter property and on 9th January 1939, he filed applications in the two execution cases for setting aside the orders of dismissal for default passed in them and for leave to continue the proceedings on behalf of all the shebaits. The trial Court allowed these applications and set aside the orders of dismissal for default. On appeal the judgment was affirmed. The judgment-debtor has now come up to this Court.

2. Mr. Panohanan Ghose who appears in support of the appeal has argued before us that the Courts below ought to have thrown out the applications of the Receiver on the ground of limitation. His contention is really of a two-fold character. In the first place, he says that under Order 22, E. 12, Civil P.C., no application for substitution) can be made by the heirs of a deceased decree-holder. They can only make a fresh application for execution which must be governed by Article 182, Limitation Act. In the second place, it is urged that even if the application is for leave to continue the proceedings started by Naba Kishore, it is hit by Article 181, Limitation Act, as it has not been made within three years from the death of Naba Kishore. I have no doubt that there may be some force in these arguments. Order 22, Rule 12, Civil P.C., lays down that nothing in Rules 3, 4 and 8 of the order would apply to proceedings in execution of a decree or order.

3. There is divergence of judicial opinion as to the proper interpretation of this rule. According to one view as there is no provision or machinery provided by the Code of Civil Procedure for substitution of the legal representatives of a deceased decree-holder and as these proceedings can never abate, the heirs or legal representatives can only file a fresh application for execution. This was the view taken by the Madras High Court in Palaniappa Chettiar v. Valliammai Achi ('27) 14 A.I.R. 1927 Mad. 184, which was subsequently overruled by a Full Bench decision of the same Court in Venkatachalam Chetti v. Ramaswamy Servai ('32) 19 A.I.R. 1932 Mad. 73. A somewhat similar view was taken by this Court in Akshoy Kumar v. Surendra Lal ('26) 13 A.I.R. 1926 Cal. 957 where it was held by the learned Judges that it was neither competent nor necessary for the legal representatives of a decree-holder to make an application for substitution. B.B. Ghose J., who delivered the judgment observed, however, that on the death of the applicant for execution it was open to the legal representatives to apply immediately for carrying on the proceedings in execution of the decree or to apply for fresh execution under Order 21, Rule 16, Civil P.C. In an earlier Calcutta case Manmatha Nath Mitter v. Rakhal Chandra ('10) 14 C.W.N. 752, the question arose at the appellate stage as the appellant died during the pendency of an appeal from an order in an execution proceeding. It was held that it was open to the legal representatives to apply for leave to prosecute the appeal. The Madras Full Bench decision referred to above, namely, Venkatachalam Chetti v. Ramaswamy Servai ('32) 19 A.I.R. 1932 Mad. 73, laid down the proposition that the legal representatives of a deceased decree-holder could be substituted under Section 146 and Order 21, Rule 16, Civil P.C., and allowed to continue the proceeding. It was not to be treated, as a fresh application and, consequently, was not hit by Section 48, Civil P.C. This view found favour with the Bombay High Court in Annachrya v. Narayan Pandurang ('3) 20 A.I.R. 1933 Bom. 358 and the Patna High Court expressed the same opinion in 13 Pat. 777.6 The majority of judicial decisions are thus in favour of the view that the deceased decree-holder's legal representatives oan carry on the execution proceedings started by the decree-holder and need not file a fresh application. If it is not a fresh application Article 182, Limitation Act, would not certainly be applicable.

4. The question still arises whether the application for leave to continue the proceedings would come within the purview of Article 181, Limitation Act. Mr. Ghose argues that such application must come within the residuary article: where as it is contended on the other side that the application being not one contemplated by the Civil Procedure Code it is not one to which the provision of Article 181, Limitation Act, is attracted. In my opinion, none of the questions discussed above do really arise for decision in the present case. The decrees in question were obtained by Naba Kishore as a managing shebait of a certain idol. The person beneficially interested in the suit and in whose favour the decree was really obtained was the idol. It is true, as has been laid down in Jagadindra Nath v. Hemanta Kumari ('05) 32 Cal. 129 that the right to possession and management of the dedicated properties which belongs to the shebait carries with it the right to bring suits whenever necessary for the protection of the idol's property. But the shebait's right to sue is analogous to that of a guardian of an infant Tarit Bhusan v. Iswar Sridhar Salagram Shila : AIR1942Cal99 . The idol of a Hindu temple is a juridical entity which holds and enjoys property dedicated to it in an ideal sense. The shebait or manager is the earthly representative who manifests the will of the deity and represents its dealings with the outside world.

5. In these circumstances I think that the decrees in the present case were really decrees in favour of the idol. The death of the manager or shebait could have no further legal effect than the death of the guardian of an infant. The execution proceedings indeed could not be continued unless the idol was properly represented. But no question of substitution really arises, nor can it be said that the application by the new guardian or representative of the deity is a fresh application for execution. It may be that the Court is not bound to wait indefinitely and keep the execution proceedings in its file when there is none on the record to carry on the proceedings. In such circumstances the Court can certainly strike off the proceedings. But the striking off would not really amount to a dismissal of the execution case and it could be revived by the Court on proper cause being shown. In the present case both the Courts below were satisfied that there were sufficient grounds which prevented the applicant from coming up earlier and we are not inclined to interfere with the discretion exercised by the Courts below. The result is that we dismiss the appeals; in the circumstances of the case, we direct each party to bear its own costs throughout.

Sen, J.

6. I have had the opportunity of reading the judgment of my learned brother where all the facts have been fully set out. I agree with the conclusion at which my learned brother has arrived but for somewhat different reasons. I shall therefore, state only those facts which are necessary for the purpose of explaining the points with which I shall deal. The managing shebait of the deity obtained two decrees, for rent which he put into execution. He died pending the application and as no one appeared to continue them they were dismissed for default on 17th December 1935. In 1938 the other shebaits brought a suit for settling a scheme of management and got, a receiver appointed. He has applied to the executing Court to continue the execution cases which had been dismissed. The applications were made on 9th January 1939. The Courts below have allowed the applications. The judgment-debtor has appealed. On his behalf two contentions have been raised which may be stated thus : (1) As there is no provision for the substitution of parties in execution proceedings, on the death of the decree-holder shebait his legal representatives could not continue the proceedings and the proceedings terminated. The decrees could be executed thereafter only by fresh applications for execution. Such applications are governed by Article 182, Limitation Act and must be made within three years of the last execution petition and within 12 years of the decree. The present applications being made beyond the time prescribed by Article 182, they are barred. (2) Even if it be held that the proceedings in execution could have been continued after substitution, in the present case there was no such substitution and the applications were dismissed for default. An application to revive and continue the execution proceedings would be governed by Article 181, Limitation Act, and must be made within three years of the death of the shebait. The present applications having been made beyond that period they are barred.

7. I propose to examine the first contention that the execution proceedings must terminate on the death of the decree-holder pending the execution proceedings by reference to the relevant provisions of the Code of Civil Procedure. Order 22, Rule 1, Civil P.C., says that the death of a plaintiff shall not cause the suit to abate if the right to sue continues. Order 22, Rule 12 says that Ruses 3, 4 and 8 of the order are not applicable to execution proceedings. The other rules must therefore apply to execution proceedings unless they are excluded by necessary implication. Now Order 22, Rule 1 has not been expressly or impliedly excluded from application to execution proceedings. Applying it to such proceedings, it would read thus : 'The death of a decree-holder shall not cause execution proceedings to abate if the right to execute survives.' The execution proceedings therefore did not abate by reason of the death of the decree-holder shebait. Now can it be said that they have abated by reason of the failure to substitute the legal representatives of the decree-holder 1

8. I think it best to seek the answer to this question in the provisions of the Civil Procedure Code dealing with this matter : Order 22, Rule 1 lays down the general principles regarding abatement, viz., that when the right of suit survives death will not cause abatement. If it stood by itself there could be no abatement of a suit for failure to substitute the legal representatives of a deceased plaintiff or defendant when the right to sue survived. The suit would remain pending for ever. Order 22, Rule 3 and Rule 4 were introduced to meet this difficulty. These rules make it obligatory on the legal representative to apply for substitution within a specified period by providing a penalty that if there is no substitution within that period the suit shall abate. There are no other provisions in the Code which cause a suit to abate by reason of the failure to substitute the legal representatives of a deceased plaintiff or defendant. These rules however are expressly made inapplicable to execution proceedings by Rule 12 of Order 22. Execution proceedings do not therefore abate by reason of the failure to substitute the legal representatives of the decree-holder. What I would like to emphasise is this. In a suit in which the right to sue survives the abatement of the suit is caused not by the death of one or other of the parties, it is occasioned by the failure of the parties to comply with the particular provisions of Order 22, Rules 3 and 4. When those provisions do not apply obviously there can be no abatement for their breach. The acceptance of the view that in execution proceedings the death of the decree-holder causes the proceedings to terminate and necessitates a fresh application for execution would lead to grave injustice as the following example will show: An execution petition is filed just within 12 years of a decree; before it is disposed of, the period of 12 years elapses and the decree-holder dies. If the old application cannot be continued then the decree can never be executed as a fresh application would be barred by the 12 years' rule. Thus, for no fault of the decree-holder the decree becomes incapable of execution.

9. One must hesitate before one accepts an interpretation of law which leads to such manifest injustice. This aspect of the matter was considered by the Madras High Court in Venkatachalam Chetti v. Ramaswamy Servai ('32) 19 A.I.R. 1932 Mad. 73 where it was held by the Pull Bench that where the decree-holder died pending execution proceedings a fresh application was not necessary and that the old proceedings could be continued by the legal representatives of the decree-holder after substitution. It was argued on behalf of the appellants that there was no provision in the Code for substitution in the case of execution proceedings and that consequently the Court could not substitute the legal representatives of a deceased decree-holder. My attention was drawn to the fact that Rules 3 and 4 were the only rules which dealt with substitution and it was contended these rules not being applicable to execution proceedings there could be no substitution. It is quite true that there are no provisions in the Code which lay down a procedure for substituting parties in execution proceedings. The Code however is not exhaustive and the inherent powers of the Court to make such orders as may be necessary for the ends of justice have been preserved by Section 151, Civil P.C. Order 22, Rules 3 and 4 do not confer a right upon parties to get themselves substituted, they merely provide the procedure to be adopted. The right is inherent in the parties and it arises from the fact that the suit or proceeding has not abated. The Court therefore may in the exercise of its inherent powers substitute parties in execution proceedings. Reliance was placed by learned advocate for the appellant on the case in Akshoy Kumar v. Surendra Lal ('26) 13 A.I.R. 1926 Cal. 957 where B.B. Ghosh and Panton JJ. made the following observations at page 737:

Order 22, Rule 12, Civil P.C., provides that Rule 3 which refers to substitution of legal representatives of a deceased plaintiff does not apply to proceedings in execution of a decree. On the death of/the applicant for execution it was open to the legal representatives of the deceased decree-holder to apply immediately for carrying on the proceedings in execution of the decree or to apply for fresh execution under Order 21, Rule 16, Civil P.C. It was not necessary for them nor was it competent to make an application for substitution.

10. The remarks are 'obiter dicta' and with great respect I am unable to accept the view therein expressed. The learned Judges say that the legal representatives of the deceased decree-holder could apply for carrying on the proceedings. It seems to me that the right to continue or carry on proceedings presupposes a right to be substituted and an application ''to carry on' proceedings includes in itself an application for substitution. I consider that the correct view was laid down by the Full Bench of the Madras High Court in the case mentioned above. This disposes of the first point raised. The-second point that applications for reviving the proceedings dismissed for default are barred by limitation by reason of Article 181, Limitation Act, does not appear to me to be sound, Article 181 applies only to application made under the Code : see Hansraj Gupta v. Official Liquidators of the Dehra Dun Mussoorie Electric Tramway Co. Ltd. . The applications for setting aside the orders of dismissal and for continuing the execution proceedings are not applications under the Code of Civil Procedure. The Code nowhere provides for such applications. They are proceedings by which the inherent jurisdiction of the Court is invoked. It was argued that they were applications under Section 151 of the Code and therefore governed by Article 181, Limitation Act. In my opinion, this view has arisen owing to the loose language which is sometimes employed in describing application as being under one section or another. Section 151 does not deal with any application nor does it prescribe the procedure for any application; it is a clause whereby the inherent power which is in the Court to act ex debito justitice, is recognized and left unfettered by the Code. This power is independent of the Code. An application invoking this power is one which is not made under any provisions of the Code and therefore it is not governed by Article 181 or any other Article of the Limitation Act. The Court will exercise its inherent powers if it considers that justice requires its exercise and if it is satisfied that there are no such laches on the part of the applicant which would disentitle him to relief. The Limitation Act will not govern such application. The only question which has to be considered then is whether there has been such delay as would justify the Court in refusing relief upon the principle vigilantibus non dormientibus leges adjuvant. Upon the facts disclosed in this case I am satisfied that there has really been no such culpable delay and I consider that the Courts below acted rightly in reviving the proceedings and in allowing the receiver to continue them. For these reasons I agree in the order that has been made.


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