Delhi High Court
Ramesh Chand vs Attar Singh on 16 October, 2015
$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.317/2010
RAMESH CHAND ..... Appellant
Through: Mr. Rahul Sharma and Mr. Raj
Kishor Garg, Advs.
Versus
ATTAR SINGH ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 16.10.2015
CMs No.23666/2015 (of appellant for execution of decree against LR of
JD) & 23667/2015 (of appellant u/O XXI R-54 CPC)
1. This appeal was preferred against the judgment and decree of
dismissal of a suit filed by the appellant / plaintiff. Vide order and decree
dated 19th October, 2011, the appeal was partly allowed and a decree for
recovery of a sum of Rs.4,75,000/- with interest stipulated therein, was
passed in favour of the appellant / plaintiff and against the respondent /
defendant.
2. These applications have been filed stating that the respondent /
defendant / judgment debtor (JD) has died before the decree could be
executed and seeking to execute the decree against the legal heirs of the
respondent / defendant / JD.
3. It has at the outset been enquired from the counsel for the appellant /
applicant, as to how these applications lie before this Court, inasmuch as in
my experience of the practice prevalent is of execution against legal heirs of
JD being filed and entertained without making a separate application
seeking permission therefor.
4. The counsel for the appellant / applicant has drawn attention to
Section 50 of the Code of Civil Procedure, 1908 (CPC), Sub-section (1)
whereof is as under:
"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."
On the basis thereof, it is contended that the appellant as decree
holder (DH) has to apply to this Court which passed the decree for
permission to execute the same against the heirs of the JD.
5. In my view, the language of Section 50 cannot be read in such
pedantic manner. The expression "the holder of the decree may apply to the
Court which passed it to execute the same against the legal representative
(LRs) of the deceased" cannot be read as requiring the DH to first make an
application to the suit or the Appellate Court whichsoever passed the decree
for permission to execute the same and to only thereafter apply for execution
of the decree against the LRs of the JD. Such a pedantic interpretation, if
adopted would lead to multiplicity, with first this Court (instead of the
executing Court) being faced with the question, whether the decree is
executable against the legal heirs and if so against which of the legal heirs
and the execution being deferred till then.
6. The expression "the holder of the decree may apply to the Court
which passed it to execute the same against the LRs of the deceased" in my
view means, apply for execution against the LRs of the deceased. It may be
noticed that Section 38 of the CPC defines the "Court by which decree may
be executed" as either the Court which passed it or the Court to which it is
sent for execution. A decree is thus executable by the Court which passed it
and hence the requirement in Section 50 of „applying to the Court which
passed the decree to execute the same against the LRs of the deceased‟ is
met by applying for execution against the LRs. Where the Trial Court has
passed a decree of dismissal of a suit and the Appellate Court has reversed
the said decree and passed a decree for recovery of money, as in the present
case, the decree for recovery of money passed by the Appellate Court would
be deemed to be the decree of the Trial Court and be executable by the Trial
Court only.
7. The issue is no longer res integra. This Court in The Board of
Trustees of the Port of Bombay Vs. M/s A. Kumar & Company ILR (2003)
I Delhi 234 was dealing with execution of a decree transferred to this Court
for execution. Upon it being discovered that the JD had died after the
passing of the decree by the Bombay High Court and before the filing of the
execution, the DH applied to this Court for substitution of the LRs of the JD
in the execution proceedings. The same was resisted by the LRs setting up
Section 50 supra and contending that the decree holder should apply to the
Bombay High Court which had passed the decree for execution of the
degree against the LRs of the judgment debtor. Rejecting the said contention
it was held that the natural corollary flowing from Section 50 CPC is that the
executing Court can entertain the application for substitution of the LRs of
the deceased judgment debtor. It was reasoned that to ask the decree holder
to apply to the Court which passed the decree for substitution of LRs of JD
would be against the principles of natural justice and would frustrate the
execution itself and would impliedly mean as if execution proceedings are
not different from the suit proceedings. It was further reasoned that the
decree has to be executed without even bringing the LRs of the JD on record
though where the JD dies before the decree has been fully satisfied the LRs
are required to be brought on record for the purpose of execution of the
decree. It was rather further held that Section 50 of the CPC is only in
respect of those execution proceedings which are pending before the same
Court which had passed the decree and has no application before the Court
where the execution proceedings have either been transferred for execution
or are pending for execution.
8. Notice in this regard may also be taken of Section 42(2)(b) of the
CPC which empowers a Court to which a decree has been sent for execution
to execute the decree against the LRs of the deceased JD under Section 50.
9. Mention in this regard may also be made of Sameera Rasheed Vs.
Amina Bai (1992) 1 Madras Law Journal 420 holding that Section 50 uses
the word „may‟ and gives an option to the DH to file an application before
the Court which passed the decree but nothing therein prevents the DH from
filing an application before the executing Court to implead the LRs of the JD
in the execution proceedings as the DH is concerned only with execution of
the decree. Accordingly, filing of execution application against the LRs of
the JD showing the LRs as JD was held to be not illegal.
10. Similarly, in Mohammad Aleem Vs. Maqsood Alam AIR 1989 Raj
43, filing of the execution petition against the LRs of the JD was held to be
valid when notice of the execution was issued to them. Notice in this regard
may also be taken of Order XXI Rule 22 of the CPC which requires the
executing Court to issue notice when the application for execution is made
inter alia against the LR of a party to the decree. Therefrom also, it is
evident that Section 50 is not a bar to filing execution directly against the
LRs of the deceased JD and it is not mandatory to first apply under Section
50.
11. Kunwar Bhagwat Pratap Vs. Keshav Shukla 1970 Allahabad Law
Journal 56 (DB) and Mazbut Singh Vs. Indrani AIR 1936 Oudh 152 have
also taken a view that a separate application under Section 50 merely for
substituting the LRs is not necessary and an application under Section 50(1)
is necessary only when further execution is asked for, again denoting that
the same has to be to the executing Court only.
12. The applications are thus disposed of with the aforesaid observations,
with liberty however to the appellant / applicant to, if finds any difficulty in
execution, again apply to this Court.
No costs.
RAJIV SAHAI ENDLAW, J.
OCTOBER 16, 2015
bs / „pp‟..
