Thakuri Bai vs Laxmi Chand And Ors.
1989 Latest Caselaw 564 Del

JUDGMENT

Arun B. Saharya, J.

(1) By this petition under Article 227 of the Constitution of India, the petitioners have challenged two orders made by the Executing Court dated 21st of November 1987 and 24th of January 1989, hareinafter referred to as the first and the second impugned orders respectively.

(2) By the first impugned order, the Court held that the execution proceedings instituted by Decree-Holder Thakuri Bai had abated as no application had been made till then by the legal representatives after her death on 8th December. 1986 By the second impugned order, the Court dismissed an application filed by the petitioners to set aside the first impugned order and to allow them to be brought on record as legal representatives of the deceased decree holder and to continue the execution proceedings.

(3) The petitioners claim to be legal representatives of Thakuri Bai by virtue of a registered Will dated 2nd of June 1981 They. claim that the interest of Thakuri Bai in respect of shop No. 122, Khanna Market, Lodi Colony, New Delhi, and a decree obtained by her for possession and mesne profits in respect of the said shop against Laxmi Chand. respondent No. 1, devolved upon them on the death of Thakuri Bai on 8ih of December 1986 and that they are entitled to continue the execution proceedings after her death.

(4) According to the petitioners Bisan Das, the pre-deceased husband of Thakuri Bai, was an allottee of the said shop. Initially Bisan Das employed Laxmi Chand to look after the business carried on by him at the said shop. Later, he took Laxmi Chand as his partner. The partnership was eventually dissolved. But, Laxmi Chand did not hand over possession of the shop to Bisan Das.

(5) Lxami Chand set up a claim for possession as a tenant and made an application under Section 9 of the Delhi Rent Controller Act, 1958 for fixing standard rent of the shop. Bisan Das contested this application. He died during the pendency of these proceedings and his widow Thakuri Bai was brought on record as his legal representative. The Rent Controller held that there was no relationship of landlord and tenant between the parties.

(6) Thereafter, Thakuri Bai filed a suit for recovery of possession of the said shop and mesne profits against Laxmi Chand, hereinafter referred to as the first suit. The Civil Court held that Laxmi Chand was not a tenant, that he has an unauthorised occupant, and passed a decree for possession of the said shop as also for recovery of mesne profits. Thakuri Bai filed another suit for the recovery of mesne profits for the subsequent period, hereinafter referred to as the second suit. Appeals preferred by Laxmi Chand from the decrees passed in the first and the second suit were dismissed in due course.

(7) In April 1^82, after dismissal of the first appeal against the decree passed in the first suit, Thakuri Bai filed an application for execution of the Decree against Laxmi Chand. This application was numbered as Execution Case.No. 26 of 1982. Laxmi Chand, however, preferred a second appeal to this Court and thereafter a Special Leave Petition to the Supreme Court for getting aside the decree, but in vain. Thus, Laxmi Chand finally lost the battle by the dismissal of his Special Leave Petition on 14th December 1984. Then, in January 1985, his son Krishan Kumar filed objections in the execution proceedings, on the ground, inter alia, that a firm M/s. Krishna Brothers, respondent No. 2, in which he is a partner, is in occupation of the said shop as an independent tenant. Before these objections could be disposed of, Thakuri Bai died on 8th of December, 1986.

(8) The first impugned order was made on 21st of November 1987 on an application filed by the objector, respondent No. 2. In this application. it was alleged that no application had been moved by the legal representatives of the deceased decree-holder despite the lapse of more than eight months and it was prayed that the proceedings "be dropped being abated". The General Attorney of Thakuri Bai, who had been prosecuting the case during her lifetime, filed a reply to this application. He took up a position : "there is no need to bring the legal representatives/legal heirs on record in execution case". On this application, the Court held that the General Attorney of the deceased decree-holder had no authority to continue the proceedings and "her LRs only have the authority to proceed with the present petition". The Court observed : "In my view the proceedings have thus abated. Any how, if any legal representative of the deceased Dh comes forward he/she shall have her/his rights as per provisions of law". Consequently, the Court "dismissed" the execution proceedings "as abated".

(9) Thereafter, on 10th of December 1987, the petitioners moved an application with a prayer to set aside the first impugned order and to take them on record as legal representatives of the deceased decree-holder. The petitioners, somehow, invoked "the provisions of Order Xxii Rule 9 and Order Xxii Rule 4A read with Section 151 C P.C.". It must be mentioned at the outset that this application was not so well drafted as one would like it to be. Nevertheless, it was averred in it that the petitioners, whose names and particulars were mentioned in the application, were "only legal heirs of deceased Smt. Thakuri Bai" and that the proceedings in execution cannot abate. It was also pleaded, perhaps, under an erroneous belief that the provisions made under Rule 4 of Order Xxii, Code of Civil Procedure, hereinafter referred to as Cpc, was applicable, and "That the applicant shave received the knowledge on 22nd November, 1987 and application is within time". This application has been dismissed by the second impugned order on the ground that it is "not maintainable". Further, fault has been found with the application for three reasons. First, that the applicants have not indicated the details to explain how they came to kow of the execution proceedings. Secondly, that it has not been shown how '"cause of action survives in their favor". Thirdly, that the application "has also not been filed within the period of limitation".

(10) 'MR. Ravinder Sethi, learned counsel for the petitioners, has contended that proceedings in execution of a decree cannot abate and both the impugned order are, therefore, without jurisdiction and the same should be set aside.

(11) There is considerable force in the proposition urged by Mr. Sethi. Generally, where any proceeding is taken or application made by a person, then the proceeding can be continued by any person claiming under him. This general rule is enacted in Section 146. CPC. This rule is subject to any provision otherwise made by the Civil Procedure Code or by any other law. Provision has been made in Order 22 Rules 3, 4 and 8, Cpc, for abatement of proceedings in a suit in the circumstances envisaged in those rules. These provisions, however, do not apply to proceedings in execution of a decree. This doctrine has been given legislative sanction by an express provision made in Rule 12 in these words : nothing rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order". This. however, does not imply that legal representatives of a deceased decree-holder should not be brought on record nor that proceedings in execution could continue despite the death of a decree-holder without any representation of the estate on record. Legal representatives of the deceased decree-holder should, no doubt, come on record to continue the proceedings but the penalty imposed on the legal representatives of the deceased plaintiff under Rule 3, namely, that the suit shall abate where no application is made within the time limited by law for this purpose, does not apply to proceedings in execution by virtue of the said Rule, 12. A fortiori the bar of limitation cannot be invoked in respect of an application for bringing on record legal representatives of a deceased decree holder in proceedings in execution of a decree. See : Venkatachalam Chetti v. Ramaswamy Servai and others A.I.R. 1932 Madras 73; Evuru Venkata Subbayya v. Srishti Veerayya and others, ; Gopal Chandra Naskar v. Hiranya Proa Moulock and others, : Budh Singh and others, v. 8th Additional District Judge, Meerut and others, .

(12) It is obvious, on a perusal of the first impugned order, that the Court laboured under the erroneous impression that the proceedings before it "abated" because the legal representatives of the deceased decree holder had not come forward till then to continue the proceedings. It must, however, be mentioned that the Court was right in holding that the erstwhile attorney of the decree-holder had no authority to continue the proceedings after her death. Since on one had come forward up to that stage to be substituted in place of the deceased decree-holder, it would have been appropriate for the Court to dispose of the proceeding as infructuous inasmuch as it would have been not fruitful to proceed further unless someone came forward as a legal representative of the deceased decree-holder. But, this is not what the Court did. Instead, it proceeded to dismiss the proceedings in execution under the mistaken belief that the same had abated. The Court had Ho jurisdiction to do so.

(13) The second impugned order also suffers from the same vice. On this occasion, the Court dismissed the application of the petitioners to set aside the earlier order.