Gauhati High Court
Page No.# 1/6 vs Niramai Das And 2 Ors on 11 June, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010114962025
2025:GAU-AS:7648
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/73/2025
PADUM DAS
S/O LATE HEMENDRA DAS, R/O SOUTH HAIBORGAON LNB ROAD, P.O.-
HAIBORGAON, MOUZA- TOWN, P.S.- SADAR, DIST- NAGAON, ASSAM, PIN-
782002
VERSUS
NIRAMAI DAS AND 2 ORS
D/O LATE DHANESWAR DAS, R/O SOUTH HAIBORGAON LNB ROAD, P.O.-
HAIBORGAON, MOUZA- TOWN, P.S.- SADAR, DIST- NAGAON, ASSAM, PIN-
782002
2:MINU @ MANU DAS
S/O LATE DHANESWAR DAS
R/O SOUTH HAIBORGAON LNB ROAD
P.O.- HAIBORGAON
MOUZA- TOWN
P.S.- SADAR
DIST- NAGAON
ASSAM
PIN-782002
3:REBATI DAS
D/O LATE DHANESWAR DAS
R/O SOUTH HAIBORGAON LNB ROAD
P.O.- HAIBORGAON
MOUZA- TOWN
P.S.- SADAR
DIST- NAGAON
ASSAM
PIN-78200
Page No.# 2/6
Advocate for the Petitioner : Mr. P. Mahanta, Advocate
Advocate for the Respondents : XXXX
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 11.06.2025
Date of Judgment :11.06.2025
JUDGMENT AND ORDER (ORAL)
Heard Mr. P. Mahanta, the learned counsel appearing on
behalf of the petitioner.
2. The petitioner herein who is one of the legal representatives
of the judgment debtor Hemendra Das (since deceased) has filed
the present proceedings challenging the order dated 16.05.2025
passed by the Court of the learned Munsiff No.1, Nagaon in Misc.
(J) Case No.65/2025 arising out of Title Execution Case
No.06/2013 whereby the application filed under Section 47 of the
Code of Civil Procedure, 1908 was rejected.
3. This Court taking into account that the execution
proceedings pertains to the year of 2013 and the suit was of the
year 2006, takes up the instant application for disposal at the
motion stage itself.
Page No.# 3/6
4. The grievance of the petitioner herein is that he along with
Shri Swapan Das; Shri Utpal Das and Shri Jitumoni Das are the
legal representatives of Late Hemendra Das who was the
judgment debtor. The attention of this Court has been drawn to
the judgment passed by the learned Coordinate Bench of this
Court in RSA No.185/2003 wherein Late Hemendra Das was
substituted by his legal representatives and inspite of that, the
decree holders in Title Execution Case No.06/2013 are
proceeding against the deceased judgment debtor Late
Hemendra Das without substituting the legal representatives of
the judgment debtor.
5. This Court finds it relevant at this stage to take note of the
judgment of the Supreme Court in the case of V. Uthirapathi vs.
Ashrab Ali and Others, reported in (1998) 3 SCC 148 which lays
up as to how the Executing Court is required to proceed when
the judgment debtor had expired. Paragraph Nos.14 & 15 of the
said judgment being relevant is reproduced herein under:-
"14. In our opinion, the above statement of law in Mulla's Commentary
on CPC, correctly represents the legal position relating to the
procedure to be adopted by the parties in execution proceedings
and as to the powers of the civil court.
15. It is clear, therefore, that if after the filing of an execution
petition in time, the decree-holder dies and his legal representatives
Page No.# 4/6
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 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."
Page No.# 5/6
6. From a perusal of the above quoted paragraphs of the
judgment, it is seen that the Supreme Court has made it clear
that there is no abatement if the judgment debtor dies and the
legal representatives are not properly brought on record and the
execution proceedings remains pending on the file of the
Executing Court. However, in the case of the death of a
judgment debtor, the decree holder could file an application to
bring the legal representatives of the judgment debtor on record
at any time and the Court can fix a reasonable time for the said
purpose and if the decree holder does not file an application for
the said purpose, the Court can dismiss the execution petition for
default. It was also observed by the Supreme Court that it is
open to the decree holders to file a fresh execution petition in
case of the death of the judgment debtor thereby including the
legal representatives of the judgment debtor and such a fresh
execution petition, if filed, is in law only a continuation of the
pending execution application - the one which was filed in time
by the decree holders initially.
7. Taking into account the said law, as it is an admitted fact
that the original judgment debtor (since deceased) had expired
and the same is very much apparent from the judgment and
order passed by the learned Coordinate Bench of this Court in
Page No.# 6/6
RSA No.185/2013, this Court disposes of the instant petition
directing the learned Court of the Munsiff No.1, Nagaon (the
learned Executing Court) to proceed with the execution case
being Title Execution Case No.06/2013 by taking note about the
death of the original judgment debtor and thereupon provide
opportunity to the decree holders to file appropriate application
for substitution of the legal representatives of the original
judgment debtor.
8. With the above, the instant proceedings stands disposed of.
JUDGE
Comparing Assistant
