Ram Chandra vs Narendra Kumar And Others
2013 Latest Caselaw 1118 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 4
 

 
Case :- WRIT - C No. - 18106 of 2013
 

 
Petitioner :- Ram Chandra
 
Respondent :- Narendra Kumar And Others
 
Petitioner Counsel :- B.N. Singh
 

 
Hon'ble Sibghat Ullah Khan,J.

Heard learned counsel for the petitioner and Shri Raj Kumar Srivastava, learned counsel for the respondent who has filed his vakalatnama.

Original suit no.135 of 1971 was filed by Dulhin Krishnawati Devi since deceased and survived by respondents 1 and 2 against Devi Lal since deceased and survived by petitioner and proforma respondents 3 to 7 for ejectment, recovery of arrears of rent and demolition of unauthorised construction. The suit was decreed on 10.2.1976. Civil Appeal was dismissed by the District Judge/Additional District Judge and Second Appeal No.832 of 1978 was dismissed by this court on 11.11.2005. Learned counsel for the respondent states that Special Leave Petition was filed against the said judgment before the Supreme Court which was also dismissed. Plaintiff filed execution case no.77 of 1980 for execution of the decree. During pendency of the execution case defendant judgment debtor Devi Lal died on 15.9.1995. Plaintiff decree holder filed substitution application which was allowed on 3.2.1996 and petitioner and respondents 3 to 7 were substituted at the place of devi Lal. Afterwards Dulhin Krishnawati Devi also died and respondents 1 and 2 on the basis of the Will dated 8.8.2005 applied for substitution. Civil Judge (Junior Division), Court No.10, Deoria allowed the substitution application on 6.2.2009. Against the said order petitioner filed revision being Civil Revision No. Nil of 2009 which was dismissed in limine by District Judge, Deoria on 21.5.2009. Orders dated 6.2.2009 and 21.5.2009 have been challenged through this writ petition after four years.

The only argument of learned counsel for the petitioner is that by virtue of Order 22 Rule 12 C.P.C. provision of substitution do not apply to execution proceedings hence no substitution was permissible and decree holder could only apply for fresh execution. In this regard reliance has been placed upon Full Bench authority of this court reported in Baij Nath vs. Ram Bharosey A.I.R. 1927 Allahabad 165. Para-9 of the aforesaid Full Bench authority is quoted below:-

9. When the sons of Ram Lal on his death made the application of the 28th April 1925 they did not ask for any fresh proceedings. They said that Ram Lal's name might be removed and the petitioner's name might be entered in the array of decree-holders. They had to make an application in the usual form of ten columns because there is no rule of law which enables the legal representative of a deceased decree-holder to apply for mere substitution of names. He must apply whenever he does apply, for execution of the decree vide Order 21, Rule 16 of the Civil P.C. It is clear therefore that neither the application of the 25th of January 1925, nor the application of the 28th April 1925, was a fresh application, within the meaning, of Section 48 of the Civil P.C.

From the above paragraph it cannot be inferred that the Full Bench held that no substitution was permissible. It merely held that continuance of execution is permissible on behalf of the legal representatives of the deceased decree holder under Order 21 Rule 16 C.P.C. The aforesaid Full Bench authority of this court has held that application by the legal representatives of decree holder after the death of the decree holder is in-fact an application for removal of the name of the decree holder and entry of the name of his legal representatives at his place and technically it is not substitution. To hold otherwise will be disastrous. If a decree holder files execution application within time which is not decided for 12 years from the date of decree and thereafter decree holder dies, his legal representatives will not be enttled to get the decree executed for the reason that in case they file fresh execution it will be barred by time. In this regard reference may also be made to Full Bench authority of the Madras High Court reported in A.I.R. 1932 Madras 73 (which referred to the aforesaid full bench judgment of Allahabad), A.I.R. 1928 Privy Council 162, A.I.R. 1991 Allahabad 214, 1970 A.L.J. 56 (D.B.) and A.I.R. 2002 Alld. 75. Para-3 of A.I.R. 1991 Allahabad 214 is quoted below:-

3. Order 22, R. 12 lays down that nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. Rules 3 and 4 of Order 22 provide for making of an application for substituting the heirs of plaintiff and defendant within the time provided by law, with the result that if such an application is not made, suit stands abated. When R. 12 lays down that nothing in Rules 3 and 4 will apply to execution proceedings, it means that even if heirs are not brought on record, execution proceedings will not abate. The legal representatives of the deceased decree-holder are not required to move substitution application and as held by a Division Bench of this Court in Manmohan Dayal v. Kailash Nath AIR 1957 ALL 647 : 1957 All LJ 578 they are entitled to ask for continuation of execution proceedings without moving any fresh application for execution.

The argument that the above Allahabad full bench held that in execution no substitution is permissible was also raised in a crude form in the aforesaid Madras High Court full bench but it was repelled in the following manner:-

Mr. Govindarajachari's only comment on this case is that the learned Judges, after stating the rule correctly that there is no machinery for substituting the name of a legal representative in a pending execution application, have illogically refused to apply the principle to the case before them. This is not so; for, what they say is that the legal representative cannot merely apply for the substitution of his name in a pending application but should file an application which must be an application for execution under Order 21, Rule 16 and by that application the pending execution may be continued after substitution of the name of the legal representative.

The above case was followed in Mirza Muhammad Sadiq Ali Khan v. Sajjad Mirza alias Munney Agha I.L.R. (1927) Luck. 126. Referring to it, the learned Judges stated thus:

"It has been laid; down in a Full Bench decision of the Allahabad High Court in Baij Nath v. Ram Bharos I.L.R. (1927) A. 509 (F.B.) that there is no rule under which the legal representative of a deceased decree-holder can or should apply merely for substitution of names. The application should be for execution. We take the same view."

No doubt, as pointed out by Mr. Govindarajachari, the question, whether the application was a fresh one or one merely to continue the pending application, was not very material in this case as, having regard to the dates, the plea of limitation under Section 48 of the Code of Civil Procedure could not have been raised with respect to it.

Reference may also be made to the Supreme Court authority reported in Puran Singh and Ors. v. State of Punjab and Ors. A.I.R. 1996 S.C. 1092. Supreme Court held that C.P.C. does not apply to writ proceedings, however, after the death of a party substitution has to take place. Order 22 Rule 12 C.P.C. only bars the application of Rule 3,4 and 8 to proceedings in execution of a decree. Under Section 146 C.P.C. also execution proceedings could be taken or continued by the legal representatives of judgment debtor.

Even every tribunal has got inherent power to permit the legal representatives of a party to continue the proceedings initiated by or against his predecessor.

Accordingly, there is no error in the impugned order. Even otherwise the petition is highly belated. Writ petition is therefore dismissed. Executing court shall execute the decree forthwith as the suit was filed 42 years before.

Order Date :- 22.4.2013

RS