Bimbadhar Panda vs Abdul Zalil and Others

Macpherson, J.—This is an application in revision against the order of the Collector of Cuttack dismissing an appeal against the order of the Sub-Deputy Collector, of Jaipur, on an application by the petitioner under Order 21, Rule 90, CiviL P.C.

The only point; which is taken on behalf of the petitioner is "that one of the joint decree-holders having died during, the pendency of the proceedings for sale of a holding in execution of a rent decree, the proceedings in respect of the sale. Are void the petitioner held a registered mortgage on the holding. The application for execution was filed on 14th May 1927.

One of the, joint decree-holders-died on 14th June and the sale was held on 15th July and the application under Order 21, Rule 90 was made a fortnight later. It was held in the trial Court that there was no material irregularity or fraud in publishing or conducting the sale itself. The question whether the applicant had sustained substantial injury was not considered nor until the appellate stage) the question of the effect of the death of the joint decree holder.

The present plea of the petitioner-cannot prevail. Under Order 22, Rule 12, Civil P.C. nothing in Rule 3 shall apply: to proceedings in execution of a decree or; order. Rule 3 sets out the procedure in case of the death of one of several plain tiffs or of the sole plaintiff, on failure to follow which within the time limited by law the suit shall abate so far as the deceased plaintiff is concerned.

As has-been held by this Court in Golab Koer v. Mohammad Zaffar Hussain AIR 1921 Pat. 180, a pending execution proceeding does not abate by reason'' of the death of any of the decree holders. It is also doubtful whether the death of a joint decree-holder: could in any event bring the ease within the provisions of Order 21, Rule 90, as being a material irregularity in publishing is conducting the sale. This application is without merits and is dismissed with, costs.