F.A. McNaught vs Mt. Saraswati Thakurain

Mohammad Noor, J.—The simple question involved in this appeal is whether the representatives of a deceased decree-holder can get their names substituted during the pendency of an execution proceeding and proceed with it. It seems that Mr. A.J. Forbes held a decree against the respondent. He died, and his estate was administered by his executor, Mr. A.H. Forbes. Mr. A.H. Forbes took out execution of the decree and then died. His executors applied for the substitution of their names in the execution proceedings in place of Mr. A.H. Forbes and wanted to proceed with the execution. There were certain objections raised as to the right of the executors of Mr. A.H. Forbes to continue the execution proceedings. That has been decided in favour of the appellants, and there is no cross-objection before us.

The second objection was that there was no provision in the CPC by which a representative of a deceased decree-holder could be substituted in the course of an execution proceeding. This objection prevailed before the learned Subordinate. Judge He relied upon a decision of the Madras High Court in Palaniappa Chettiar v. Valliammai Achi, 1927 Mad 184 = 99 I.C 627 = 50 Mad 1 and held that the representative of a deceased decree-holder should start fresh execution proceedings. The executors of Mr. A.H. Forbes have preferred this appeal.

It appears that the decision relied upon by the learned Subordinate Judge was expressly overruled by a Full Bench of the Madras High Court in Venkatachalam Chetti v. Ramaswamy Servai, 1932 Mad 73 = 136 IC 561 = 55 Mad 352 (FB. The reason for the decision in Palaniappa Chettiar v. Valliammai Achi, 1927 Mad 184 = 99 I.C 627 = 50 Mad 1 was that the Code made no provision for the substitution of the name of the representative of the decree-holder during the course of execution proceedings, and further that O. 22, R.12, clearly took out the provision of Rr. 3 and 4, O. 22, Civil P.C., from the execution proceedings. As has been pointed out by the two learned Judges, who composed the Full Bench of the Madras High Court, R. 12 by excluding Rr. 3 and 4 does not prohibit the substitution of a name in execution proceedings. It is needless to give in detail the reasoning given by them for holding that substitution is permissible. We respectfully agree with the views expressed by them, and the decision must be followed. The learned advocate on behalf of the respondent has drawn our attention to two cases; one is a Full Bench decision of the Allahabad High Court in Baij Nath v. Ram Bharos, 1927 All 165 = 104 IC 116 = 49 All 509 (FB). The observations relied upon by the learned advocate are to be found at p. 514 of the report; but those observations, in my opinion, are more or less obiter dicta. What was decided in the case was that an application for substitution was not a fresh application so as to come within the mischief of S. 48, Civil P.C., but it was an application to continue the pending execution. This case helps the appellants. The learned advocate has further relied upon the case on Muhammad Sadiq Ali Khan v. Sajjad Mirza, 1928 Oudh 30 = 105 IC 611 = 3 Luck 126, but that case also, in my opinion, helps the appellants rather than the respondent. There also there was an application for substitution and the Oudh Chief Court held it to be an application to continue the pending execution proceedings. These two decisions were noticed by the Full Bench of the Madras High Court and the learned Judges used them as well as the two decisions of this Court to which I shall presently refer in support of the view that substitution in the course of the execution proceedings was permissible. A similar view seems to have been taken by a Bench of this Court in Mt. Gulab Kuer v. Mohamed Zaffar Hussan Khan, 1921 Pat 180 = 62 IC 30 = 6 Pat LJ 358, where it was held that where the decree-holder assigned his interest to another, an application by the assignee for substitution of his name in place of that of the assignor was an application under O. 21, R. 16, Civil P.C., 1908, and not an application under O. 22, R. 10, and if, at the time of such application, execution proceedings were pending, the application was not a fresh application for execution but merely an application for bringing the assignee on the record and for continuing the pending execution proceedings. This case was followed in Mt. Bhagwantia Kuer v. Zamir Ahmad Khan, 1924 Pat 576 = 73 IC 766 = 3 Pat 596, where an application for substitution of the name of the representative of a deceased decree-holder riled in the course of the execution proceedings was held to be an application to continue the execution proceedings so as to save the application from becoming barred by limitation.

No doubt, there is no express provision for substitution of the name of a representative of the deceased decree-holder during the pendency of the execution proceedings; but, as is apparent from a number of decided cases, such applications are filed and allowed, and the Courts have almost invariably treated such applications to be applications for continuation of the pending execution proceedings. It has been held more than once that the Code is not exhaustive. It is clear from O. 22, R. 12, read with Rr. 3 and 4, that an execution proceeding docs not abate on the death of the decree-holder. If so, there is no bar to the execution continuing at the instance of his representative. I see no reason why a fresh application should be necessary. I am therefore of opinion that in view of the decisions of this Court and of the Full Bench decision of the Madras High Court, the view taken by the learned Subordinate Judge is wrong. His order is set aside. He is directed to substitute the names of the appellants, and then proceed to execute the decree according to law. The appeal is allowed with costs.

Luby, J.

I agree.