Harish Chandra Das And Others vs Gouri Madhi @ Majhi Gour And
2023 Latest Caselaw 14628 Ori

Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 17-Nov-2023 11:04:27




                                      IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                CMP NO.824 OF 2023
                                  Harish Chandra Das and others    ....                     Petitioners
                                                                    Mr. Prafulla Kumar Lenka, Advocate

                                                        -versus-
                                  Gouri Madhi @ Majhi Gour and                   ....      Opp. Parties
                                  another


                                                CORAM:
                                                JUSTICE K.R. MOHAPATRA
                                                        ORDER

             Order No.                                 15.11.2023
               03.           1.           This matter is taken up through hybrid mode.

2. Order dated 24th December, 2021 (Annexure-11) passed by learned District Judge, Ganjam at Berhampur in Civil Revision Petition No. 02 of 2017 is under challenge in this CMP, whereby substitution of the Petitioner in the revision, namely, Krishna Murty Madhi has been allowed.

3. Petitioners also challenge the order dated 24th July, 2019 (Annexure-7) passed by learned District Judge, Ganjam at Berhampur directing learned Civil Judge (Junior Division), Ganjam at Berhampur to make an inquiry under Order XXII Rule 5 CPC as well as the inquiry report dated 21st March, 2020 (Annexure-9) in this CMP.

4. Mr. Lenka, learned counsel for the Petitioners submits that in Execution Case No.06 of 2014, an application under Section 47 CPC was filed by the Petitioners stating that the decree is not executable. The said application was allowed and the execution

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case was dropped. Assailing the same, the decree holder, namely, Krishna Murty Madhi filed Civil Revision No.02 of 2017.

5. During pendency of the Civil Revision, said Krishna Murty Madhi expired. As such, the Opposite Parties claiming to be the LRs of said Krishna Murty Madhi, filed an application under Order XXII Rule 3 CPC to be substituted in his place. It was stated in the petition for substitution that Krishna Mruty Madhi died on 8th August, 2018 without filing any supporting document to that effect. The Petitioners filed objection disputing the date of death and the claim of the Opposite Parties to be the LRs of said Krishna Murty Madhi. In order to ascertain as to the date of death of said Krishna Murty Madhi and about his LRs, learned District Judge, Ganjam at Berhampur vide order under Annexure-7 directed learned Civil Judge (Junior Division), Ganjam, Berhampur to make an inquiry under Order XXII Rule 5 CPC. Without conducting proper inquiry and without referring the documents filed by the Petitioners, the report was submitted on 21st March, 2020 (Annexure-9) by learned Civil Judge (Junior Division), Ganjam at Berhampur to the effect that said Krishna Murty Madhi died on 8th August, 2018 and the Opposite Parties are the LRs of said Krishna Murty Madhi vide his report dated 21st March, 2020 under Annexure-9. Accepting such report, the impugned order under Annexure-11 has been passed substituting the Opposite Parties as the LRs of deceased Krishna Murty Madhi. Hence, this CMP has been filed.

6. It is submitted by Mr. Lenka, learned counsel for the Petitioners that in view of the provision under Order XXII Rule 12 CPC, Rules 3, 4 and 8 of Order XXII CPC are not applicable to an

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execution proceeding. Since the Civil Revision arises out of an execution proceeding, an application under Order XXII Rule 3 CPC would not be maintainable. As such, direction to make an inquiry under Annexure-7, consequential inquiry report (Annexure-9) and substitution of LRs of the deceased-decree holder vide Order under Annexure-11, are not sustainable.

7. It is further submitted that Section 50 CPC is also not applicable to the instant case, as it relates to substitution of JDrs only. A decree holder cannot be substituted resorting to the said provision.

8. In support of his submission, Mr. Lenka, learned counsel for the Petitioners relied upon the decision in the case of Smt. Ram Murti Devi and others vrs. Ralla Ram Tulsi Ram and another reported in AIR 1987 HP 1, wherein it is held as under:

"46. Order 22 Rule 12 of the Code provides that the provisions of Rules 3, 4 and 8 of Order 22 are not applicable to proceedings in execution of a decree. The legal representatives are, therefore, to be substituted to carry on the execution proceedings only. They are not required to file a separate execution application and under Section 146 of the Code they are entitled to continue with the execution proceedings started by the decree-holder."

9. He also relied upon the case of V.Uthirapathi vrs. Ashrab Ali and others reported (1998) 3 SCC 148, in which it is held as under:

"12. In other words, the normal principle arising in a suit

-- before the decree is passed -- that the legal representatives are to be brought on record within a particular period and if not, the suit could abate, -- is not applicable to cases of death of the decree-holder or the judgment-debtor in execution proceedings.

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13. In Venkatachalam Chetti v. Ramaswami Servai [ILR (1932) 55 Mad 352 : AIR 1932 Mad 73 (FB)] a Full Bench of the Madras High Court has held that this rule enacts that the penalty of abatement shall not attach to execution proceedings. Mulla's Commentary on CPC [(Vol. 3) p. 2085 (15th Edn., 1997)] refers to a large number of judgments of the High Courts and says:

"Rule 12 engrafts an exemption which provides that where a party to an execution proceedings dies during its pendency, provisions as to abatement do not apply. The Rule is, therefore, for the benefit of the decree-holder, for his heirs need not take steps for substitution under Rule 2 but may apply immediately or at any time while the proceeding is pending, to carry on the proceeding or they may file a fresh execution application."

(emphasis supplied)

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.

In Venkatachalam vs. Ramaswami [1932 ILR 55 Mad. 352- AIR 1932 Mad. 73 (FB)], a Full Bench of the Madras High Court has held that this rule enacts that the penalty of abatement shall not attach to execution proceedings. Mulla's Commentary on CPC (Vol.3) p. 2085 (15th Ed., 1997) refers to a large number of judgments of the High Court:

"Rule 12 engrafts an exemption which provides that where a party to an execution proceedings dies during its pendency, provisions as to abatement do not apply. The rule is, therefore, for the benefit of the decree holder, for his heirs need not take steps for substitution under Rule 2 but may apply immediately or at any time while the proceeding is pending, to carry on the proceeding or they may file a fresh execution application."

In our opinion, the above statement of law in Mulla's Commentary on the 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."

10. He, therefore, submits that since the provision under Order XXII Rules 3, 4 and 8 CPC are not applicable to the instant case, an application under Order XXII Rule 3 CPC is not maintainable in

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the instant case. These aspects were not taken into consideration by learned District Judge while adjudicating the matter. Hence, the orders under Annexure 7 and 11 are not sustainable. Consequently, the report under Annexure 9 is also not sustainable.

11. Taking into consideration the submission made by learned counsel for the Petitioners and on perusal of the record, it appears that during pendency of the Civil Revision No.02 of 2017 in the Court of learned District Judge, Ganjam at Berhampur, the sole decree holder, namely, Krishna Murty Madhi expired. Since an objection was raised with regard to the date of the death and the locus of the Opposite Parties to file such an application, learned District Judge, Ganjam at Berhampur directed for an inquiry under Order XXII Rule 5 CPC vide order dated 24th July, 2019 (Annexure

7). The said order was not challenged immediately.

12. On the other hand, the Petitioners participated in the inquiry and ultimately assail the said order in this CMP. The Petitioners pursuant to the direction of learned District Judge, Ganjam participated in the inquiry under Order XXII Rule 5 CPC, without raising any objection with regard to maintainability of such inquiry. The Petitioners without raising any objection to the sustainability of order under Annexure-7, also participated in the hearing of the petition under Order XXII Rule 3 CPC filed by the Opposite Parties describing themselves as the LRs of the deceased decree holder. When the order went against them, they challenged the report in the CMP. Thus, they are estopped to assail the said order under Annexure-7 in the CMP. The Petitioners, of course, assailed the

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correctness of the report before learned District Judge, Ganjam raising the objection to the same.

13. Admittedly, the Civil Revision, in which an application under Order XXII Rule 3 CPC was filed, arises of an execution proceeding. But the civil revision is filed under Section 115 CPC. Hence, an application under Order XXII Rule 3 CPC is maintainable in such a revision, as it is not an execution proceeding. Further the case law relied upon by learned counsel for the Petitioners also clarified the position of law that an application for substitution of D.Hr. is maintainable and the rigors of Order XXII Rule 9 CPC is not applicable to the execution proceeding. Thus, the case law relied upon by learned counsel for the Petitioners are of no assistance to him.

14. It further appears that the Petitioners raised objection the effect that the documents submitted by the Petitioners were not taken into consideration. But on perusal of the Annexure-10, i.e., objection it does not reflect which of the documents were not taken into consideration by learned trial Court while submitting its report under Annexure 9. It further appears that learned District Judge, Ganjam taking into consideration the materials on record, allowed the application. Allowing an application under Order XXII Rule 3 CPC is only for the purpose of protecting the interest of the deceased in his estate and continues the litigation on his behalf. It does not give a right to the substituted LRs to stake a claim in the estate of the deceased.

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15. In that view of the matter, this Court is of the considered opinion that learned District Judge, Ganjam has committed no error in passing the impugned order under Annexure 11.

16. Accordingly, the CMP, being devoid of any merit, stands dismissed.

Urgent certified copy of this order be granted on proper application.

(K.R. Mohapatra) Judge

Rojalin