Whether execution proceedings can be abated as legal heirs of deceased is not brought on record?

Having considered the rival submissions of the

parties and also the judicial decisions relied upon this Court is of

the view that the matter stands resolved in terms of the decision

of the Hon'ble Supreme Court in AIR 1998 SC 1168

(V.Uthirapathi vs. Ashrab Ali and others) (supra). While

approving the views expressed in Mulla's Commentary on CPC

(Vol.3) p. 2085 (15th Ed., 1997) the Hon'ble Supreme Court has

held as under:-

" 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 representative to come on record at any time. The execution application cannot even be dismissed for default behind the 5 Patna High Court CWJC No.6881 of 2012 (7) dt.18-04-2013

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." (stress laid).

Patna High Court - Orders

Deo Dutta Singh vs Leela Devi & Ors on 18 April, 2013

 The present application has been filed for setting aside

the order dated 17.3.2012 (Annexure-4) passed by Execution

Munsif, Patna in Execution Case No. 03 of 2011, inter alia,

directing the petitioner to take necessary action for bringing the

names of the legal heirs of the deceased sole defendant in the

decree as the names of the judgment-debtors who are the legal

heirs of the sole defendant do not find place in the decree.

2. The short facts leading to the present petition are

that the petitioner filed an Eviction Suit No. 9/2005 for eviction 2 Patna High Court CWJC No.6881 of 2012 (7) dt.18-04-2013

2/6

of the defendant Suresh Singh which was decreed in the

petitioner's favour. The petitioner preferred Execution Case No.

8/2009 in that behalf and on notices being issued it transpired

from the service report that the defendant Suresh Singh had died.

The said Execution Case No.8/2009 subsequently came to be

dismissed for non-prosecution and later on Execution Case No.

3/2011 for execution of the decree passed in Eviction Suit No.

9/2005 was preferred against the legal heirs of the deceased

defendant Suresh Singh. In this backdrop the impugned order

was passed directing the petitioner to take necessary steps for

bringing the names of the legal heirs of the deceased defendant

in the decree whose names do not find place in the decree.

3. It is submitted on behalf of the petitioner that the

decree may be executed against legal heirs of the deceased

defendant without requiring their names to be incorporated in

the decree. It is submitted that there is no such requirement in

Section 50 C.P.C. which permits execution of the decree against

the legal representatives of the deceased.

50. Legal representative.-(1)

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 representative

of the deceased.

3 Patna High Court CWJC No.6881 of 2012 (7) dt.18-04-2013

3/6

4. It is further submitted that Order 21 Rule 35 provides

that possession of immovable property shall be delivered to the

decree holder by removing any person bound by the decree who

refuses to vacate the property. Provisions of Section 12 of the

Bihar Building (Lease, Rent & Eviction) Control Act also

contemplates that an order for recovery of possession of

premiser shall be finding on all persons in occupation thereof

and vacant possession shall be given to the landlord.

5. Reliance is also placed on a decision of the Apex

Court reported in AIR 1998 SC 1168 (V.Uthirapathi vs. Ashrab

Ali and others) to the effect that a fresh execution case against

the legal heirs of the deceased judgment debtor was

maintainable.

6. Learned counsel for the respondents on the other hand

opposes the petition on the ground that the decree cannot be

executed against the legal heirs of the deceased defendant until

their names are incorporated in the decree itself. In his

submission the use of the words "the holder of the decree may

apply to the court which passed it to execute the same" in

Section 50 CPC shows that execution of the decree against legal

representatives can be effected only upon an application to the

Court which passed the decree. Reliance is also placed on the 4 Patna High Court CWJC No.6881 of 2012 (7) dt.18-04-2013

4/6

following decisions :-

1. AIR (39) 1952 PATNA 333 [Rehi Damodar Laljee vs.

Sone Basant Lal and others]

2. AIR 1928 Privy Council 162 [(Kunwar) Jang Bahadur vs. Bank of Upper India Ltd., Lucknow, in liquidation].

3. AIR 1936 Madras 205 [Kanchamalai Pathar-Auction purchaser vs. Ry. Shahaji Rajah Sahib and others- Decree-holders].

7. Having considered the rival submissions of the

parties and also the judicial decisions relied upon this Court is of

the view that the matter stands resolved in terms of the decision

of the Hon'ble Supreme Court in AIR 1998 SC 1168

(V.Uthirapathi vs. Ashrab Ali and others) (supra). While

approving the views expressed in Mulla's Commentary on CPC

(Vol.3) p. 2085 (15th Ed., 1997) the Hon'ble Supreme Court has

held as under:-

" 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 representative to come on record at any time. The execution application cannot even be dismissed for default behind the 5 Patna High Court CWJC No.6881 of 2012 (7) dt.18-04-2013

5/6

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." (stress laid).

8. In view of the fact that in the instant case the decree

was passed against judgment debtor, who however died only

thereafter, therefore, the fresh execution petition impleading the

legal representatives of the judgment debtor had to be treated

only as a continuation of the earlier execution petition which

had been filed within time by the decree holder initially, and is

thus maintainable.

9. Considering the clear enunciation of law by the

Hon'ble Supreme Court as above any views expressed to the

extent inconsistent therewith in the decisions relied upon by the 6 Patna High Court CWJC No.6881 of 2012 (7) dt.18-04-2013

6/6

respondents must therefore yield to the law of the land. In any

event even the Privy Council held in (Kunwar) Jang Bahadur's

case (supra) that failure to get an order for substitution from the

Court which passed the decree was merely a procedural defect

which might be waived. In the Patna decision in Rehi Damodar

Laljee's case (supra) this Court was also of the view that

execution of the decree against the legal representatives of a

deceased J.D., was an irregularity in procedure which can be

waived.

10. In the above circumstances, therefore, the

impugned order dated 17.3.2012 is set aside and the learned

Court below directed to proceed in Execution Case no.3 of 2011

in accordance with law.

11. The writ petition stands allowed.

(Vikash Jain, J)

Chandran

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