Whether execution proceeding can be abated?

4. Rule 12 of Order XXII of the Code of Civil Procedure provides that nothing in Rules 3, 4 and 8 shall apply to the proceedings in execution of a decree or order. Rule 3 provides for impleadment of the legal representatives of a deceased plaintiff. Rule 4 provides for impleading the legal representatives of a deceased defendant. If no application is filed within the time provided underArticle 120 of the Limitation Act to implead the legal representatives of a deceased plaintiff or a deceased defendant, the suit will abate. Article 121 of the Limitation Act provides for a further period of sixty days to file an application to set aside the abatement. If no application is filed within the time provided under Article 121 of the Limitation Act, there would occur delay and, in any application for impleadment filed thereafter, the delay has to be explained. By providing that Rules 3 and 4 of Order XXII of the Code of Civil Procedure would not apply to the execution proceedings, it only means that due to non-impleadment of the legal representatives, there would be no abatement to the execution proceedings. 

Kerala High Court

Sabeeda Beevi vs Nazeema Thaha on 2 August, 2004

Citation: 2012 (3) KHC 747, 2012(3)KLJ558, 2012(3)KLT549,2012(4)Civil court cases 

120 kerala

The fourth Judgment Debtor in E.P.No.42 of 1995 in O.S.No.8 of 1984, on the file of the Court of the Munsiff of Varkala, challenges the order passed by the executing court, by which, the legal representatives of the deceased third judgment debtor were allowed to be impleaded as additional respondents. The petitioner filed an application to dismiss the Execution Petition on the ground that all the legal representatives of the deceased third judgment debtor were not impleaded. The court below dismissed that application on the ground that the application for impleading was allowed. That order is also under challenge in this Original Petition.

2. The third judgment debtor died on 30.6.2007. Application for impleading was filed in 2007 itself. But, that application was dismissed as not pressed finding that there were some defects in the application. Later, the decree holder filed an application in 2010 to implead the legal representatives. The court below found that in spite of the dismissal of the earlier application as not pressed, the application is liable to be allowed.

3. Learned counsel for the petitioner submitted that the application was highly belated and therefore, the court below should not have allowed the application.

4. Rule 12 of Order XXII of the Code of Civil Procedure provides that nothing in Rules 3, 4 and 8 shall apply to the proceedings in execution of a decree or order. Rule 3 provides for impleadment of the legal representatives of a deceased plaintiff. Rule 4 provides for impleading the legal representatives of a deceased defendant. If no application is filed within the time provided underArticle 120 of the Limitation Act to implead the legal representatives of a deceased plaintiff or a deceased defendant, the suit will abate. Article 121 of the Limitation Act provides for a further period of sixty days to file an application to set aside the abatement. If no application is filed within the time provided under Article 121 of the Limitation Act, there would occur delay and, in any application for impleadment filed thereafter, the delay has to be explained. By providing that Rules 3 and 4 of Order XXII of the Code of Civil Procedure would not apply to the execution proceedings, it only means that due to non-impleadment of the legal representatives, there would be no abatement to the execution proceedings. The  

legal representatives could be impleaded at any time and Execution Petition can be proceeded with. There is no bar to file a fresh Execution Petition also with the legal representatives on the party array, provided the Execution Petition is not barred by limitation. The Supreme Court inV.Uthirapathi v. Ashrab Ali and others (AIR 1998 SC 1168) held thus:

"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 representatives 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 view of the above legal position, the orders passed by the court below are legal and proper. No grounds are made out for interference. The Original Petition is accordingly dismissed.

(K.T.SANKARAN) Judge ahz/