It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal
representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the Code of Civil Procedure."
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION NO.1164/1999
Shri Dinkar Bhagwantrao Khati vs Prabhakar Nanaji Kale on 8 August, 2008
Bench: A. B. Chaudhari
1. By the present civil revision application, the applicants have
challenged order dated 8.9.1999 in Regular Darkhast No.823/1968,
made by 2nd Jt. Civil Judge (J.D.), Nagpur on application (Exh.53),
whereby the said application Exh.53 came to be dismissed. 3
FACTS :
2. Smt. Sulochana original applicant in this revision had
obtained a decree in Civil Suit No.312-A/50, filed by her against
Nanaji, the father of non-applicants herein, Laxman and others.
Nanaji had preferred appeal against that decree but it was held that
Nanaji had no legal right, title or interest in the suit property and in
fact he had no locus standi to claim any independent ownership. That
decree became final and conclusive between Nanaji and Sulochana.
The decree was passed on 8.10.1952 and thereafter the litigation
continued for number of years. The decree was put to execution,
which was sought to be executed against Laxman i.e. another
Judgment Debtor and Nanaji. The non-applicants who are the legal
representatives of Nanaji were in possession of the suit property.
Since Nanaji had no right or title as found by the competent Court nor
had any locus standi even in the execution proceedings, his name was
deleted from the execution proceedings. The execution proceeded and
the bailiff of the Court gave possession of the suit property to the
applicant/decree holder. Thereafter, the non-applicants filed an 4
application under Order 21 Rule 99 of the Code of Civil Procedure and
claimed for determination of their alleged rights under Order 21 Rule
101 of the Code of Civil Procedure and put them back in possession of
the suit property. That application was resisted by reply, that was
filed by the applicant and preliminary objection to the maintainability
of the application filed by non-applicants under Order 21 Rule 99 of
the Code was raised, which came to be decided by the impugned order
dated 8.9.1999, holding application Exh.53 as maintainable and
directed the parties to lead evidence. Hence, this revision application
by the decree holder.
SUBMISSIONS :
3. Shri Kshirsagar, learned Counsel for the applicants made the
following submissions :
(1) The application filed by the non-applicants was
not maintainable and without going to the merits thereof was required
to be rejected because the non-applicants are the legal heirs of Nanaji,
who was not arrayed as even a judgment debtor in the execution
proceedings because the Courts had found that Nanaji had absolutely 5
no legal right, title or interest in the property and, consequently, legal
heirs of Nanaji i.e. non-applicants were in the same position like
Nanaji. Therefore, they were not the persons other than the judgment
debtor. Even assuming that the non-applicants were the persons other
than the judgment debtor, the reading of the pleadings in their
objection will show that they did not claim any independent right in
the suit property, which could be investigated within the scheme of
Order 21 Rule 99 of the Code onwards.
(2) Relying on Order 22 Rule 12 of the Code of Civil
Procedure, he argued that it was not necessary at any rate to bring the
legal representatives of Nanaji on record in the execution proceedings.
Finally, learned Counsel for the applicants prayed for dismissal of the
application (Exh.53).
Advocate Shri Kshirsagar relied on the following decisions :
(i) 1999 (3) Civil LJ, 356 (West Coast Paper Mills
Ltd....Versus...Trustees of the Port of Bombay and others).
(ii) 2007 (1) Mh.L.J. 402 (Jagdish s/o Motilal
Joshi...Versus...Chandrapal s/o Tulsiram Bhola and another). 6
(iii) 2003 (1) Bom. C.R. 525 (Corina
Cota...Versus...John Joseph Noronha & another).
4. Per contra, learned Counsel for the non-applicants
vehemently opposed the revision application and argued as under :
(1) Section 50 of the Code of Civil Procedure ordains
that the decree holder ought to bring the legal representatives on
record even in execution proceedings.
(2) In fact the decree was passed against Nanaji and
Laxman irrespective of the fact whether title of Nanaji was found or
not and admittedly the non-applicants being in possession, in their
absence the execution could not have proceeded and possession could
not have been taken and having done so now the Court is required to
look into the merits of the claim of the non-applicants and that is the
scheme of the provision of Order 21 Rule 99 of the Code onwards
instead of filing a separate suit.
(3) The act of taking possession without bringing
legal representatives of Nanaji i.e. non-applicants on record amounts
to execution of a decree against the dead person or against whom no 7
decree has been passed. He relied on the following decisions.
(i) 1924 Nagpur 165 (Page 166 Caption 2)
(Ramswarup...Versus...Raghunandan).
(ii) AIR 1955 Calcutta 573 (paragraph 18)
(Sm. Rajlakshmi Dassi...Versu...Bonomali Sen and others).
CONSIDERATIONS :
5. I have heard learned Counsel for the rival parties at length.
The decree having been passed in the year 1953, the following
observations made by the Hon'ble Supreme Court in the case of
Shreenath and another...Versus...Rajesh and others, reported in
AIR 1998 Supreme Court 1827 about the delay in getting fruits of the
decree would be apt.
"The seekers of justice many a time has to take a long circuitous routes, both on account of hierarchy of Courts and the procedural law. Such persons are and can be dragged till the last ladder of the said hierarchy for receiving justice but even here he only breaths fearness of receiving the fruits of that justice for which he has been aspiring to receive. To reach this stage is in itself an 8
achievement and satisfaction as he, by then has passed through a long arduous journey of the procedural law with many hurdles replica of mountain terrain with ridges and furrows. When he is ready to take the bite of that fruit, he has to pass through the same terrain of the procedural law in the execution proceedings the morose is writ large on his face. What looked inevitable to him to receive it at his hands distance is deluded back into the horizon. The creation of hierarchy of Courts was for a reasonable objective for confering greater satisfaction to the parties that errors, if any, by any of the lower Courts under the scrutiny of a higher Court be rectified and long procedural laws also with good intention to exclude and filter out all unwanted who may be the cause of obstruction to such seekers in his journey to justice. But this obviously is one of the causes of delay in justice. Of course, under this pattern the party wrongfully gaining within permissible limits also stretches the litigation as much as possible. Thus, this has been the cause of anxiety and concern of various authorities, Legislators and Courts. How to eliminate such a long consuming justice ? We must confess that we have still to go long way before true satisfaction in this regard is received. Even after one reaches the stage of final decree, he has to undergo a long distance by passing 9
through the ordained procedure in the execution proceedings before he receives the bowl of justice. The Courts within its limitation have been interpreting the procedural laws so as to conclude all possible disputes pertaining to the decretal property which is within its fold in an execution proceeding i.e., including what may be raised later by way of another bout of litigations through a fresh suit. Similarly legislatures equally are also endeavouring by amendments to achieve the same objective. The present case is one in this regard. Keeping this in view, we now proceed to examine the present case.
In interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding the justice is to be adopted. The procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the receipient of justice is not to be followed."
It is necessary to reproduce relevant pleadings from
application (Exh.53) that was made by the non-applicants.
"That the applicants are the sons and legal representatives of the deceased Nana Bapuji Kale, who died in the year 1976. The said Nana had purchased the 10
property from one Maroti Jagoba as per Registered Sale- Deed dated 23.10.1950.
That the deceased Nana and after his death, the applicants are in exclusive possession of the property as the owners thereof. The possession of the applicants was exclusive, open and continuous since the date of the purchase.
The possession of the applicants was not on behalf of the J. Dr. but was on their own behalf. The applicants had also perfected their title to the property by adverse-possession."
6. Perusal of the above pleadings clearly show that the
non-applicants are not claiming any independent right, title or interest
in the property except through deceased Nanaji. The plea of adverse
possession stated in two lines in paragraph No.6 in the first place is
misplaced and in the wake of the pending proceedings between the
parties in the Courts of law the plea of adverse possession cannot be
set up in the manner done by non-applicants.
7. As to the submissions made by Advocate Shri Kshirsagar
about Order 22 Rule 12 of the Code, it is better to extract what the 11
Hon'ble Supreme Court has said in the case of
V. Uthirapathi...Versus...Ashrab Ali and others, reported in
AIR 1998 Supreme Court 1168. The relevant paragraph Nos.11 to 15
are quoted as under :
"11. Order 22, Rule 12 of the Code of Civil Procedure reads as follows :
"Order 22, Rule 12 : Application of order to execution proceedings : Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order."
12. In other words, the normal principle arising in a suit before the decree is passed that the legal representatives are to be brought on record within a particular period and if not, the suit could abate, is not applicable to cases of death of the decree holder or the judgment debtor in execution proceedings.
13. In Venkatachalam v. Ramaswami,
(1932) ILR 55 Mad 352 : AIR 1932 Mad 73, a Full Bench of the Madras High Court has held that this rule enacts that the penalty of abatement shall not attach to execution proceedings. Mulla's Commentary on CPC (Vol.3) p. 2085 (15th Ed., 1997) refers to a large number of judgments of the High Courts and says :
12
"Rule 12 engrafts an exemption which provides that where a party to an execution proceedings dies during its pendency, provisions as to abatement do not apply. The rule is, therefore, for the benefit of the decree holder, for his heirs need not take steps for substitution under Rule 2 but may apply immediately or at any time while the proceeding is pending, to carry on the proceeding or they may file a fresh execution application."
14. In our opinion, the above statement of law in Mulla's Commentary on the CPC, correctly represents the legal position relating to the procedure to be adopted by the parties in execution proceedings and as to the powers of the Civil Court.
15. It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal 13
representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the Code of Civil Procedure."
8. I have already found that the non-applicants have not
claimed any independent right or title over the suit property and, 14
therefore, their remaining in possession through Nanaji would not give
them any right to obstruct the decree which was passed. It would be
travesty of justice if a decree that was passed in the year 1953 is
allowed to be frustrated or contested at such late stage on frivolous
grounds. I respectfully concrete with the view taken by Brother
A.H. Joshi, J. in the case of Jagdish s/o Motilal
Joshi...Versus...Chandrapal s/o Tulsiram Bhola and another, reported
in 2007 (1) Mh.L.J. 402, of which paragraph No.18 reads thus :
"18. In the present case, it is seen on facts that on showing by the applicant, she has no independent right, title and interest and no issue at the arise for enquiry. It would, therefore, be unjust and contrary to the scheme of law to hold that notwithstanding what is the status of objector a fullfledge enquiry like in a suit would be warranted. A contrary view would amount to permitting abuse of process of law. Objector's status that she claims through Judgment Debtor is clear and is seen even without enquiry of any time for the purpose of lifting veil."
9. Dealing with the submissions of Advocate Shri Deshmukh, I
find that Section 50 of the Code is not mandatory in character and it is 15
the choice of the decree holder whether to bring legal representatives
on record to execution proceedings or not. That apart now by virtue
of provisions of Rule 12 in Order 22 of the Code that is not necessary.
The decisions cited by Advocate Shri Deshmukh do not have any
application in the light of the discussion made by me herein above.
10. I have already found that the non-applicants had no
independent title or right. For the above reasons, I find that the
impugned order is illegal and the same is liable to be quashed and set
aside. In the result, I make the following order.
11. Civil Revision Application is allowed. The impugned order,
dated 8.9.1999, passed below Exh.53, in Regular Darkhast
No. 823/1968 is quashed and set aside. The application (Exh.53) is
held to be not maintainable. The same is, therefore, dismissed. The
non-applicants to pay costs of Rs.2,000/- (Rupees Two Thousand
Only) to the applicants.
JUDGE
ssw
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